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.: 4:21-01074-P

UNITED AIRLINES, INC., 

Defendant.

PLAINTIFFS’ TRIAL BRIEF 

IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 1 of 33 PageID 349
i

TABLE OF CONTENTS

ARGUMENT.................................................................................................................................. 1

I. Preliminary Injunctive Relief is Appropriate and Necessary to Remedy United’s 

Ongoing Violation of Federal Civil Rights Laws............................................................... 1

A. Plaintiffs are likely to succeed on the merits of their Title VII claims. .................. 2

B. Plaintiffs are likely to succeed on the merits of their ADA claims. ..................... 12

C. Without preliminary injunctive relief, Plaintiffs will suffer irreparable injury. ... 16

D. Plaintiffs’ injury outweighs any potential hardship to United.............................. 20

E. Granting the injunction will serve the public interest........................................... 22

II. Plaintiffs Have Properly Complied with Their EEOC Filing Requirements, 

and That Compliance Poses no Obstacle to Preliminary Injunctive Relief. ..................... 23

CONCLUSION............................................................................................................................. 25

TABLE OF AUTHORITIES

Cases

ADT v. Capital Connect, 

145 F. Supp. 3d 671 (N.D. Tex. 2015) ............................................................................... 16, 18

Ansonia Bd. of Educ. v. Philbrook, 

479 U.S. 60 (1986)...................................................................................................................... 6

Austgen v. Allied Barton Sec. Servs., 

815 F. App’x 772 (5th Cir. 2020) ............................................................................................. 14

Bailey v. Dallas Cty. Sch., 

No. 3:16-cv-1642-M, 2016 WL 7638146 (N.D. Tex. Dec. 9, 2016)........................................ 24

Baker v. Am. Airlines, 

430 F.3d 750 (5th Cir. 2005) .................................................................................................... 10

Brener v. Diagnostic Ctr. Hosp.,

671 F.2d 141 (5th Cir. 1982) .................................................................................................. 2, 5

Bultemeyer v. Fort Wayne Cmty. Schs., 

100 F.3d 1281 (7th Cir. 1996) .................................................................................................... 5

Burlington N. & Santa Fe Ry. Co. v. White, 

548 U.S. 53 (2006).......................................................................................................... 4, 11, 18

Clark Cty. Sch. Dist. v. Breeden, 

532 U.S. 268 (2001)............................................................................................................ 11, 16

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 2 of 33 PageID 350
ii

Cooper v. AT&T Corp./Lucent Tech., 

No. 97-CA-0628, 1998 WL 1784223 (W.D. Tex. Oct. 22, 1998)............................................ 11

Davis v. Dallas Area Rapid Transit, 

383 F.3d 309 (5th Cir. 2004) .................................................................................................... 10

Davis v. Fort Bend Cty., 

765 F.3d 480 (5th Cir. 2014) ...................................................................................................... 3

Dickerson v. United Parcel Serv., 

No. 3:95-CV-2143, 1999 WL 966430 (N.D. Tex. Oct. 21, 1999)............................................ 15

Dr. A. v. Hochul, 

No. 21-cv-1009 (N.D.N.Y. Sept. 14, 2021).............................................................................. 17

Drew v. Liberty Mut. Ins., 

480 F.2d 69 (5th Cir. 1973) ................................................................................................ 24, 25

EEOC v. Chevron Phillips Chem. Co., 

570 F.3d 606 (5th Cir. 2009) ............................................................................................ 2, 5, 13

EEOC v. Mission Hosp., 

No. 1:16-cv-00118, 2017 WL 3392783 (W.D.N.C. Aug. 7, 2017)............................................ 4

EEOC v. Universal Mfg. Corp., 

914 F.2d 71 (5th Cir. 1990) ........................................................................................................ 6

Elrod v. Burns,

427 U.S. 347 (1976).................................................................................................................. 20

Feist v. Louisiana, 

730 F.3d 450 (5th Cir. 2013) .................................................................................................... 12

Fort Bend County v. Davis, 

139 S. Ct. 1843 (2019).............................................................................................................. 24

Knights of Ku Klux Klan, Realm of La. v. E. Baton Rouge Par. Sch. Bd., 

578 F.2d 1122 (5th Cir. 1978) .................................................................................................... 2

Ladd v. Livingston, 

777 F.3d 286 (5th Cir. 2015) ...................................................................................................... 2

Lawson v. State of Wash.,

319 F.3d 498 (9th Cir. 2003) .................................................................................................... 20

Love v. City of Dallas,

No. 3:96-CV-0532-R, 1997 WL 278126 (N.D. Tex. May 14, 1997)......................... 4, 6, 11, 16

Martin v. Metro. Atlanta Rapid Transit Auth., 

225 F. Supp. 2d 1362 (N.D. Ga. 2002)..................................................................................... 23

McCoy v. City of Shreveport, 

492 F.3d 551 (5th Cir. 2007) .................................................................................................... 10

Moss v. Harris Cty. Constable Precinct One, 

851 F.3d 413 (5th Cir. 2017) .............................................................................................. 12, 14

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 3 of 33 PageID 351
iii

Myers v. Hose, 

50 F.3d 278 (4th Cir. 1995) ........................................................................................................ 6

Norman v. NYU Langone Health Sys., 

492 F. Supp. 3d 154 (S.D.N.Y. 2020)................................................................................. 13, 14

Quiles Rodriguez v. Calderon, 

172 F. Supp. 2d 334 (D.P.R. 2001)........................................................................................... 19

Rogers v. Int’l Marine Terminals, 

87 F.3d 755 (5th Cir. 1996) ........................................................................................................ 6

Roman Catholic Diocese of Brooklyn v. Cuomo,

141 S. Ct. 63 (2020)............................................................................................................ 20, 22

Ruggiero v. Mount Nittany Med. Ctr., 

736 F. App’x 35 (3d Cir. 2018) ................................................................................................ 14

Sampson v. Murray, 

415 U.S. 61 (1974).................................................................................................................... 19

Sherr v. Northport-E. Northport Union Free Sch. Dist., 

672 F. Supp. 81 (E.D.N.Y. 1987) ............................................................................................... 4

Strong v. Univ. Healthcare Sys., 

482 F.3d 802 (5th Cir. 2007) .................................................................................................... 11

Tabatchnik v. Cont’l Airlines, 

262 F. App’x 674 (5th Cir. 2008) ............................................................................................. 16

Tandon v. Newsom, 

141 S. Ct. 1294 (2021).............................................................................................................. 22

Turpen v. Missouri-Kansas-Texas R.R. Co., 

736 F.2d 1022 (5th Cir. 1984) .................................................................................................... 5

TWA v. Hardison, 

432 U.S. 63 (1977)...................................................................................................................... 9

Union Pac. Ry. Co. v. Botsford,

141 U.S. 250 (1891).................................................................................................................. 22

United States v. Seeger, 

380 U.S. 163 (1965).................................................................................................................... 3

Vaughn v. Waffle House, 

263 F. Supp. 2d 1075 (N.D. Tex. 2003) ..................................................................................... 5

Weber v. Roadway Express, 

199 F.3d 270 (5th Cir. 2000) ...................................................................................................... 2

Winston v. Lee, 

470 U.S. 753 (1985).................................................................................................................. 22

Statutes

42 U.S.C. § 12112............................................................................................................. 12, 14, 15

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 4 of 33 PageID 352
iv

42 U.S.C. § 12203......................................................................................................................... 15

42 U.S.C. § 2000e....................................................................................................................... 2, 5

42 U.S.C. § 2000e-2........................................................................................................................ 2

Other Authorities

What to expect when you fly, United Airlines, https://www.united.com/ual/en/us/fly/travel/whatto-expect.html ............................................................................................................................. 8

Regulations

29 C.F.R. § 1630.2........................................................................................................................ 13

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 5 of 33 PageID 353
Plaintiffs, on behalf of themselves and similarly situated United Airlines (“United”)

employees, do not challenge United’s general policy of requiring employees to receive COVID-19 

vaccines. Instead, they challenge United’s unlawful refusal to grant reasonable religious and 

medical accommodations to that mandate. Rather than offering such accommodations, United has 

offered—at best—the false accommodation of indefinite leave without pay. In doing so, United 

violated its obligations under Title VII of the Civil Rights Act of 1964 (“Title VII”) and the 

Americans with Disabilities Act (“ADA”) to provide reasonable accommodations. United also 

violated federal civil rights laws by retaliating against employees for participating in the protected 

activity of requesting such accommodations. A more thorough background of this dispute is 

included in Plaintiffs’ Motion for a Temporary Restraining Order and Preliminary Injunction, 

which Plaintiffs incorporate here. See ECF Nos. 5–7. 

Until recently, United planned to place accommodation-seeking employees on unpaid 

leave beginning October 2, 2021, and to terminate any employee whose accommodation request 

was denied. After Plaintiffs’ Motion for a Temporary Restraining Order, however, United delayed

its plans to effectively terminate all such employees until October 15, 2021. A preliminary 

injunction is necessary to preserve the status quo for United’s employees who are in the process 

of challenging United’s discriminatory and retaliatory actions.

ARGUMENT

I. Preliminary Injunctive Relief is Appropriate and Necessary to Remedy United’s 

Ongoing Violation of Federal Civil Rights Laws.

To obtain a preliminary injunction, Plaintiffs must establish: “(1) a likelihood of success 

on the merits; (2) a substantial threat of irreparable injury; (3) that the threatened injury if the 

injunction is denied outweighs any harm that will result if the injunction is granted; and (4) that 

the grant of an injunction will not disserve the public interest.” Ladd v. Livingston, 777 F.3d 286, 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 6 of 33 PageID 354
2

288 (5th Cir. 2015). “Where one or more of the factors is very strongly established, this will 

ordinarily be seen as compensating for a weaker showing as to another or others.” Knights of Ku

Klux Klan, Realm of La. v. E. Baton Rouge Par. Sch. Bd., 578 F.2d 1122, 1125 (5th Cir. 1978). 

A. Plaintiffs are likely to succeed on the merits of their Title VII claims.

United has twice violated Title VII. First, it discriminated against Plaintiffs by failing both

to engage in the interactive process and to provide reasonable religious accommodations—unpaid

leave is facially unreasonable. Second, United retaliated against Plaintiffs for seeking

accommodation—United has made clear that it disfavors religious accommodation requests. 

1. Title VII prohibits an employer from discriminating against an employee “because of 

such individual’s . . . religion.” 42 U.S.C. § 2000e-2(a)(1). This “includes all aspects of religious 

observance and practice, as well as belief, unless an employer demonstrates that he is unable to 

reasonably accommodate to an employee’s . . . religious observance or practice without undue 

hardship on the conduct of the employer’s business.” Id. § 2000e(j). After receiving an 

accommodation request, an employer should “engage in an interactive process—a meaningful 

dialogue with the employee[.]” EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 

2009) (cleaned up).1 The employer must act in “good faith,” id., and the employee must “make a 

good faith attempt to satisfy his needs through means offered by the employer,” Brener v. 

Diagnostic Ctr. Hosp., 671 F.2d 141, 146 (5th Cir. 1982). United failed to engage in a good-faith

interactive process and failed to provide any reasonable religious accommodations. Accordingly, 

1 As Plaintiffs noted, courts “have not been consistent” about whether Title VII provides an 

independent cause of action for failure to engage in an interactive process. TRO Mot. 9 n.2. But 

Contrary to United’s argument (TRO Opp. 11), some courts recognize an obligation under Title 

VII to engage in such a process. TRO Mot. at 9 n.2. The argument is academic here as Plaintiffs 

will succeed on their Title VII discrimination claim either way. United’s failure to engage in an 

interactive accommodation process underscores the unreasonableness of the so-called 

accommodation; United never intended to meaningfully accommodate them.

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 7 of 33 PageID 355
3

Plaintiffs are likely to succeed in showing that United violated Title VII.

Under Title VII, Plaintiffs “must first establish a prima facie case of religious 

discrimination” by showing: (1) that they have bona fide religious beliefs that conflict with an 

employment requirement; (2) about which they informed United; and (3) that they suffered an 

adverse employment action for failing to comply with the conflicting employment requirement. 

Davis v. Fort Bend Cty., 765 F.3d 480, 485 (5th Cir. 2014). For this, “a court’s inquiry” does not

review the merits of the religious beliefs; “whether the belief is a true religious tenet[ ] is not open 

to question.” Id. at 485 (citation and quotation marks omitted). Rather, a court asks only “whether 

[the individual’s beliefs] are, in his own scheme of things, religious.” Id. As the Supreme Court 

put it, religious beliefs are those that involve an individual’s “ultimate concern[.]” United States 

v. Seeger, 380 U.S. 163, 187 (1965). One “touchstone of a religio[us]” belief is the showing that 

a believer will “categorical[ly] disregard elementary self-interest” rather than “transgressing 

[religious] tenets.” United States v. Allen, 760 F.2d 447, 450 (2d Cir. 1985).

Plaintiffs easily satisfy the first two prongs of the prima facie case requirement. At the 

outset, by purporting to grant religious accommodation requests, United has already determined 

that Plaintiffs hold religious beliefs that merit accommodation. See, e.g., Sambrano Aff. ¶ 12

(App.3) (ECF No. 7). This Court should not revisit that determination. But even if the Court were 

to analyze this issue further, each Plaintiff who requested a religious accommodation holds a 

sincere religious belief that prevents him or her from receiving the COVID-19 vaccine. Most hold 

religious beliefs that prevent them from engaging in activity connected in any way to abortion. 

See Sambrano Aff. ¶ 5 (App.2); Hamilton Aff. ¶ 7 (App.7–8); Castillo Aff. ¶ 9 (App. 19); 

Kincannon Aff. ¶ 6 (App.28–29). As Plaintiffs will demonstrate at the upcoming hearing, the 

COVID-19 vaccines all used fetal cell lines in testing—cell lines that derived from aborted fetuses.

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 8 of 33 PageID 356
4

And some Plaintiffs’ religious beliefs conflict with taking toxic or foreign substances. See, e.g.,

Jonas Aff. ¶ 8 (App.24); Hamilton Aff. ¶ 7 (App.7–8) (she “believe[s] that [her] body is God’s 

temple” and that she cannot “inject that substance” into her body). 

Other courts have held that such beliefs are sufficient to show a sincerely held religious 

belief under Title VII. See Sherr v. Northport-E. Northport Union Free Sch. Dist., 672 F. Supp. 

81, 93 (E.D.N.Y. 1987) (holding that the plaintiffs’ beliefs opposed to receiving “a foreign element 

outside the normal processes of the body” were religious beliefs “rooted in matters of ‘ultimate 

concern,’” as evidenced by the fact that the refusal to receive the vaccine “and ensuing legal battle 

with the school district . . . manifests a dedication to their principles”); EEOC v. Mission Hosp., 

No. 1:16-cv-00118, 2017 WL 3392783, at *2–3 (W.D.N.C. Aug. 7, 2017) (holding that Plaintiffs 

established a prima facie case of religious discrimination where hospital denied request for a 

religious accommodation to flu vaccine requirement based on belief that receiving vaccine was 

contrary to belief that “our bodies are a temple and that God gave us dominion over our bodies”). 

Plaintiffs will also be able to show that they suffered adverse employment actions. 

United’s “accommodation” is indefinite unpaid leave, which “differs very little from termination.” 

Love v. City of Dallas, No. 3:96-CV-0532-R, 1997 WL 278126, at *6 (N.D. Tex. May 14, 1997). 

Just because an employee is “not completely severed” from his employment “does not mean that 

cutting off [his] paycheck was not an adverse employment action.” Id. The Supreme Court 

agrees—a period of just 37 days of unpaid leave, even when later reimbursed, constitutes an 

adverse employment action. See Burlington N. & Santa Fe Ry. Co. v. White, 548 U.S. 53, 72 

(2006). Despite the employee subsequently receiving backpay, the Court noted that “White and 

her family had to live for 37 days without income” and “[t]hey did not know during that time 

whether or when White could return to work.” Id. “Many reasonable employees would find a 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 9 of 33 PageID 357
5

month without a paycheck to be a serious hardship.” Id. Yet United is forcing employees who 

requested a religious accommodation, even employees with pre-existing immunity to COVID-19, 

to forgo their paychecks due to their religious beliefs—and likely for much longer than 37 days. 

Plaintiffs are thus likely to satisfy the “adverse employment action” requirement.

The burden then shifts to United to demonstrate that it cannot “reasonably accommodate” 

Plaintiffs’ needs without undue hardship. Turpen v. Missouri-Kansas-Texas R.R. Co., 736 F.2d 

1022, 1026 (5th Cir. 1984); 42 U.S.C. § 2000e(j). United cannot sustain that burden. One 

touchstone for this analysis is the “reasonable[ness]” of the proposed accommodation. See Vaughn 

v. Waffle House, 263 F. Supp. 2d 1075, 1082–83 (N.D. Tex. 2003). By failing to engage each 

requester in “a meaningful dialogue” about the accommodation request, United has no way to 

know whether an acceptable accommodation would impose an undue hardship. Chevron, 570 F.3d 

at 621. Announcing only a one-size-fits-all accommodation deprived both United and Plaintiffs 

of the dialogue necessary to identify accommodations that would not be unduly burdensome. 

Here, the only interaction between United and its employees requesting religious accommodations 

was a series of improper questions designed to coerce individuals into taking the vaccine contrary 

to their religious beliefs. See Kincannon Aff. ¶ 7 (App.29). This is unsurprising given the hostility 

toward employees with religious beliefs that CEO Scott Kirby exhibited. Hamilton Aff. ¶ 15 

(App.9). And United’s approach to the accommodation requests was certainly not made in “good 

faith.” Brener, 671 F.2d at 146; see also Bultemeyer v. Fort Wayne Cmty. Schs., 100 F.3d 1281, 

1285 (7th Cir. 1996) (“courts should look for signs of failure to participate in good faith or failure 

by one of the parties to help the other party determine what specific accommodations are 

necessary” and “[a] party that fails to communicate . . . may also be acting in bad faith”). Indeed, 

the only reason not to engage in the interactive process here was that United never actually

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 10 of 33 PageID 358
6

intended to allow employees whose requests were “approved” to continue working.

United also cannot show that it provided requesters with reasonable accommodations. 

Forcing employees into an indefinite amount of unpaid leave—potentially lasting several years—

is effectively termination. See Love, 1997 WL 278126, at *6. But a “[r]easonable accommodation 

is by its terms most logically construed as that which presently, or in the immediate future, enables 

the employee to perform the essential functions of the job in question.” Rogers v. Int’l Marine 

Terminals, 87 F.3d 755, 759–60 (5th Cir. 1996) (emphasis added) (quoting Myers v. Hose, 50 F.3d 

278, 283 (4th Cir. 1995)). Here, Plaintiffs can perform the essential functions of their jobs with or 

without an accommodation, as their vaccination status does not affect their abilities to perform 

their job functions. United took no steps to “presently, or in the immediate future” allow Plaintiffs 

to “perform the essential functions of [their] job[s.]” Id. Instead, United apparently identified 

only the most unreasonable option—short of formal termination—and put it in place for all 

requesters. But employers are not “free to choose an unreasonable form of accommodation over 

a reasonable one.” EEOC v. Universal Mfg. Corp., 914 F.2d 71, 74 (5th Cir. 1990) (citing Ansonia 

Bd. of Educ. v. Philbrook, 479 U.S. 60 (1986)).

There were a host of alternative accommodations United should have considered, each of 

which is more reasonable than indefinite unpaid leave. One obvious example, as Plaintiffs will 

demonstrate at the upcoming hearing, is to grant automatic exemptions from the vaccination 

requirement to employees who have already had COVID—and who are therefore even less of a 

risk to passengers and other United employees than those who have been fully vaccinated. Such 

an accommodation would be sufficient for Plaintiffs Sambrano, Castillo, and Jonas, all of whom 

have had COVID and are therefore unlikely to transfer or acquire the disease.

As another alternative, United could require mask wearing and periodic testing for 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 11 of 33 PageID 359
7

COVID-19 and/or antibodies—like President Biden suggested in his proposed nationwide 

vaccination program. As Plaintiffs will demonstrate at the upcoming hearing, this practice would 

satisfy United’s purported goal of protecting its workforce and customers at least as well as a 

uniform vaccination requirement—and likely better. At the same time, United already has a 

centralized system that it uses for employees to upload copies of their vaccination records and to 

submit accommodation requests. Limacher Decl. ¶ 14 (Def.’s App.119) (ECF No. 25). United

also already has a system in place that allows employees who have missed three days of work to 

upload information from their doctors so that United can clear those employees to return to work. 

There is no reason to believe that those same systems cannot be used to upload periodic test results. 

As Plaintiffs will further show, United could also re-implement its system of daily 

symptom screening and temperature checks for those seeking an accommodation—a system that 

would be effective at preventing transmission of COVID-19 to employees and customers alike. 

This is something United did previously and is similar to what United requires of its passengers 

and non-U.S.-based employees. Other options abound, which is why an arbitrary, across-the-board 

“accommodation” of indefinite unpaid leave cannot be reasonable. Indeed, as Plaintiffs already 

showed, the forthcoming federal order regarding vaccine mandates for private employers 

contemplates testing in lieu of vaccination; likewise, the European Union’s digital COVID-19 

certificate considers vaccination equivalent to a negative COVID-19 test or having previously 

recovered from COVID-19. See TRO Mot. 12-13 (ECF No. 6) (collecting cases).

2

Rather than explain its resistance to other options, United makes the bald assertion that it 

2

In discussing these potential accommodations, Plaintiffs do not attempt to carry United’s burden. 

Rather, United has the burden to demonstrate the reasonableness of the accommodations, and the 

burden of establishing that any accommodation would impose an undue hardship on United. See 

Turpen, 736 F.2d at 1026; 42 U.S.C. § 2000e(j). The discussion of other potential accommodations 

merely highlights the unreasonableness of the “accommodation” United selected.

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 12 of 33 PageID 360
8

“engage[d] in a cost benefit analysis concerning alternatives to vaccines.” TRO Opp. 11. But the 

absence of any reasonable accommodation shows that United’s statement is either inaccurate or 

that its unspecified “analysis” was riddled with errors. Moreover, United’s protestations that a 

“periodic testing protocol” would “impose a substantial cost on United,” Limacher Decl. ¶ 6 

(Def.’s App.118), is undercut by United’s acknowledgement that it is currently developing “new 

testing and safety protocols” for certain United employees, id. ¶ 22 (Def.’s App.121). 

Similarly, United suggests that other potential accommodations would unreasonably 

“jeopardize[ ] the lives and health of [Plaintiffs’] co-workers.” TRO Opp. 10 (ECF No. 24). But 

that is demonstrably false, as each of the accommodations described above would allow United to 

ensure that employees who forgo the vaccine pose no greater risk to passengers or other employees 

than those who have been vaccinated. And United’s alleged safety concern rings hollow, given 

United’s other policies—e.g., passengers do not need to be vaccinated, employees of regional 

partners do not need to be vaccinated, United employees outside the United States do not need to 

be vaccinated even when they fly with U.S.-based crews, and unvaccinated employees of other 

airlines are allowed to ride in the cockpit jumpseat. See Compl. ¶ 32. Moreover, according to 

United, “COVID-19 exposure on board our planes is almost zero thanks to advanced air filtration 

systems, required mask-wearing and diligent cleaning protocols.” What to expect when you fly,

United Airlines, https://www.united.com/ual/en/us/fly/travel/what-to-expect.html (emphasis 

added). Thus, even without United’s mandate, the risk on board planes is “almost zero”—even 

for the unvaccinated passengers. It follows that an accommodation for flight attendants, for 

example, involving testing—combined with the “advanced air filtration systems, required maskwearing and diligent cleaning protocols”—would eliminate United’s claim that anyone was in 

jeopardy from the accommodated employee.

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 13 of 33 PageID 361
9

United further claims that any accommodation other than indefinite leave would have 

“more than [a] de minimis cost.” TRO Opp. 9 (cleaned up). For instance, United states that a 

testing alternative “would mean implementing an elaborate and impracticable testing protocol.” 

Id. United further asserts that the “frequency of testing that would be required would be 

staggering.” Id. While the Supreme Court has held that requiring an employer “to bear more than 

a de minimis cost” in order to accommodate an employee “is an undue hardship,” TWA v. 

Hardison, 432 U.S. 63, 84 (1977), that concern is not present here. As Plaintiffs will demonstrate 

at the upcoming hearing, each of the alternatives discussed above can be implemented at minimal 

cost, at most. Indeed, given United’s existing employee reporting infrastructure for vaccinations 

as well as other health and training data, it would be simple and cost little or nothing for United to 

allow employees to also report testing results, symptom checks, or prior COVID infections. See, 

e.g., Hamilton Aff. ¶ 6 (App.7); Turnbough Aff. ¶ 5 (App.13).

This case thus differs substantially from Hardison. Unlike Hardison, United did not 

attempt to determine the cost of meaningfully accommodating its employees. Also, unlike here, 

the employee in Hardison sought a religious accommodation that would have required the 

employer to breach a collective-bargaining agreement or pay other employees overtime to cover 

the shifts. Hardison, 432 U.S. at 76-77. In that context, such burdens exceeded a “de minimis 

cost” and thus (according to the standard adopted by the Court) constituted an “undue hardship.” 

Id. at 84.3 Plaintiffs do not attempt to limit Hardison to its facts, as United suggests. TRO Opp. 10. 

Rather, Hardison offers United no support because Plaintiffs are not asking United to undertake 

3

It has been noted that Hardison cannot be squared with Title VII’s text and should be 

overruled. Patterson v. Walgreen Co., 140 S. Ct. 685, 685 (2020) (Alito, J., concurring in the 

denial of certiorari). As this Court cannot overrule precedent, Plaintiffs mention that here only to 

preserve it for later review.

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 14 of 33 PageID 362
10

similar financial or operational costs. Plaintiffs wish to continue working their jobs, on the same 

schedules, for the same salary. And they are willing to do so with mitigation measures in place. 

Finally, United attempts to sidestep this issue by arguing that “[r]eligious discrimination is 

inherently an individualized inquiry,” and that “Plaintiffs do not qualify for a class-wide 

injunction.” TRO Opp. 7 (cleaned up). But United created a class-wide issue when it decided to 

treat all requesters the same and place all “accommodated” employees on indefinite unpaid leave. 

Thus, while United certainly should have engaged in an “individualized” review of each request, 

it did not do so, opting instead to treat all requesters the same. Accordingly, class-wide relief is 

warranted and the Court should enter preliminary injunctive relief because Plaintiffs are likely to 

succeed on their Title VII failure to accommodate claim.

2. United also violated Title VII by retaliating against Plaintiffs for engaging in activity 

protected by Title VII. See Davis v. Dallas Area Rapid Transit, 383 F.3d 309, 319 (5th Cir. 2004). 

For this claim, Plaintiffs must establish a prima facie case by showing that: (1) they participated

in a protected activity; (2) their employer took an adverse employment action against them; and 

(3) a causal connection exists between the protected activity and the adverse employment action. 

See McCoy v. City of Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007). Once Plaintiffs establish 

a prima facie case, the burden shifts to United to articulate a legitimate, nonretaliatory reason for 

its employment action. See id. “[A] plaintiff need only make a low showing to shift the burden[.]” 

Baker v. Am. Airlines, 430 F.3d 750, 754 (5th Cir. 2005). If the employer identifies a legitimate, 

nonretaliatory reason for its employment action, the plaintiff must show that the employer’s 

proffered reason is “a pretext for the . . . retaliatory purpose.” McCoy, 492 F.3d at 557. 

Plaintiffs can establish each prima facie case requirement. Plaintiffs engaged in protected 

activity as “persons requesting religious accommodations under Title VII are protected under 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 15 of 33 PageID 363
11

Title VII for making such requests.” Cooper v. AT&T Corp./Lucent Tech., No. 97-CA-0628, 1998 

WL 1784223, at *7 n.104 (W.D. Tex. Oct. 22, 1998), R. & R. adopted sub nom., No. 97-CA-0628, 

1998 WL 1978660 (W.D. Tex. Dec. 8, 1998). United is thus mistaken when it states that 

requesting accommodations is not a protected activity. TRO Opp. 17. United responded to each 

request either by stating that it would place the employee who requested a religious 

accommodation on indefinite unpaid leave, with benefits stripped away, or by denying the request, 

based solely on requesters failing to notify United of their request by an arbitrary date imposed by 

the company, and preparing to terminate the employee. See Love, 1997 WL 278126, at *6; 

Burlington N., 548 U.S. at 72. This clearly demonstrates that Plaintiffs engaged in protected 

activity and suffered adverse employment actions. 

Plaintiffs can also establish that their protected activity caused the adverse action. Indeed, 

United’s well-documented antipathy toward employees with religious beliefs shows that United 

threatened indefinite leave because of those beliefs. United’s CEO is on record impugning the 

integrity of any employee requesting a religious accommodation—derisively referring to such 

employees as “sudden[ly] decid[ing], ‘I’m really religious.’” Hamilton Aff. ¶ 15 (App.9). 

Similarly, other United employees responded negatively to religious accommodation requests, 

including asking derisive questions about religious beliefs. See Kincannon Aff. ¶ 7 (App.29).

Further, temporal proximity shows a causal connection. See Clark Cty. Sch. Dist. v. 

Breeden, 532 U.S. 268, 273 (2001) (per curiam); Strong v. Univ. Healthcare Sys., 482 F.3d 802, 

808 (5th Cir. 2007). Here, Plaintiffs submitted religious accommodation requests by August 31, 

2021, and United stated just days later, on September 9, 2021, that all requesting employees would 

be “granted” the accommodation of indefinite unpaid leave and lost benefits. The events were not 

separated by months, see Breeden, 532 U.S. at 273, but mere days.

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 16 of 33 PageID 364
12

United’s approach is clear: if an employee sought a religious accommodation by August 

31, 2021, the request may have been “approved,” but the employee will still be heavily penalized. 

And if the request was not made by August 31, United brushed it aside and administratively denied

the request—without consideration of its merits—based on the company’s own arbitrary deadline, 

further evidencing United’s hostility toward requests for religious exemptions. See Castillo Aff. 

¶ 7 (App.18). Any suggestion that United’s indefinite unpaid leave decision was legitimate and 

nonretaliatory is undercut by the obvious disdain United has shown for its employees who have 

religion-based objections to receiving the vaccine. See Hamilton Aff. ¶ 15 (App.9). 

B. Plaintiffs are likely to succeed on the merits of their ADA claims.

United also violated the ADA in two ways: United failed to engage in any interactive

process or to provide employees with reasonable medical accommodations. And United retaliated

against Plaintiffs seeking medical accommodations for engaging in protected activity.

1. Under the ADA, an employer discriminates against an employee by “fail[ing] to make 

‘reasonable accommodations to the known physical or mental limitations of an otherwise qualified 

individual with a disability . . . unless . . . the accommodation would impose an undue hardship.’” 

Feist v. Louisiana, 730 F.3d 450, 452 (5th Cir. 2013) (quoting 42 U.S.C. § 12112(b)(5)(A)). To 

prevail on a failure to accommodate claim under the ADA, Plaintiffs must show that: (1) they are 

qualified individuals with a disability; (2) the disability and its limitations were known by the 

employer; and (3) the employer failed to make reasonable accommodations for such limitations. 

See Moss v. Harris Cty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017). 

Plaintiffs are likely to satisfy each of these requirements. United mistakenly contends that 

“[n]one of the Plaintiffs has shown they have a ‘disability[.]’” TRO Opp. 13. At the outset, by 

purporting to grant medical accommodations, United has already determined that some Plaintiffs 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 17 of 33 PageID 365
13

have a disability that merits accommodation. See, e.g., Jonas Aff. ¶ 10 (App.24). This Court 

should not revisit that determination. But even if the Court analyzes this issue further, Plaintiffs 

satisfy the ADA’s requirements. Under the ADA, a “qualified individual with a disability” is 

anyone “with a disability who, with or without reasonable accommodation, can perform the 

essential functions of the employment position that such individual holds[.]” Chevron, 570 F.3d 

at 614. This is to “be construed broadly in favor of expansive coverage[.]” 29 C.F.R. 

§ 1630.2(j)(1)(i). This definition thus includes impairments that are “episodic or in remission[,]” 

like “epilepsy, multiple sclerosis, cancer, hypertension, [and] asthma.” Norman v. NYU Langone 

Health Sys., 492 F. Supp. 3d 154, 16–-65 (S.D.N.Y. 2020) (citing 29 C.F.R. § 1630.2(j)(1)(vii)). 

Further, “disability” can “[d]oubtless” include certain “reactions to vaccines [that are] severe 

enough . . . to rise to the level of a disability under the ADA.” Id. at 165.

Under this definition, some named Plaintiffs suffer from bona fide disabilities. For 

instance, Plaintiff Turnbough has “relapsing/remitting [multiple sclerosis].” Turnbough Aff. ¶ 5 

(App.13). Turnbough’s neurologist recommended against receiving the vaccine due to the risk 

that it “might precipitate a ‘cytokine storm’—a condition wherein an individual’s immune system 

is over-stimulated and begins attacking healthy tissue and organs.” Id. Additionally, Plaintiff 

Jonas suffers from extreme allergies and relies on multiple medications every day to manage them. 

Supp. Jonas Aff. ¶ 4 (S.App.2).4 And even then, she still suffers chronic breathing and sinus issues, 

and is susceptible to significant allergic reactions on a daily basis, including skin rashes and 

anaphylaxis. Id. ¶¶ 5–6 (S.App.2). If she were not to take medication any day, Ms. Jonas would 

risk severe results. See id. ¶ 4 (S.App.2). Accordingly, Ms. Jonas’ doctor advised that she not 

receive the vaccine. Jonas Aff. ¶ 9 (App.24). Both Plaintiffs Turnbough and Jonas satisfy the 

4 Citations to “S.App.” refer to Plaintiffs’ Supplemental Appendix, which accompanies this Brief.

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 18 of 33 PageID 366
14

threshold requirement as they live with daily impairments from illnesses that are episodic or in 

remission. See Norman, 492 F. Supp. 3d at 164-65; see also Ruggiero v. Mount Nittany Med. Ctr., 

736 F. App’x 35, 40-41 (3d Cir. 2018) (noting that, at the “early pleading stage,” a plaintiff is “not 

required . . . to go into particulars about the life activity affected by her alleged disability”).

For the third prong, the ADA requires United to engage in an interactive process—a 

“meaningful dialogue” to discuss possible accommodations. Chevron, 570 F.3d at 621. As seen 

in the religious accommodation context, United failed to engage in such an interactive process 

with any requester. See supra Part I.A. United announced its one-size-fits-all accommodation 

without any attempt to identify the most reasonable accommodation for any specific requester, 

including those who are already immune through a prior infection. 

But any accommodation under the ADA must be reasonable. See 42 U.S.C. 

§ 12112(b)(5)(A). As already noted, indefinite unpaid leave is not a reasonable accommodation. 

See supra Part I.A. Seemingly conceding this issue, United relies on a case stating that “temporary 

leave of only a few weeks . . . was a reasonable accommodation.” TRO Opp. 14 (quoting Austgen 

v. Allied Barton Sec. Servs., 815 F. App’x 772, 775 (5th Cir. 2020)) (emphasis added). Yet the 

United employees here face potentially years of unpaid leave. But more importantly, United is 

misguided in relying on cases stating that unpaid leave “can be a reasonable accommodation.” Id.

(quoting Moss, 851 F.3d at 418). As Plaintiffs already showed (TRO Mot. 12 n.3), such cases 

address employees requesting unpaid leave as an accommodation, rather than an employer foisting 

unpaid leave on an employee. Plaintiffs have not requested such accommodations here. Further, 

the option for those on medical leave to use their “sick pay” prior to going on unpaid leave is of 

no moment. That option is temporary (lasting only until the sick leave runs out) and it unfairly 

takes away hours that employees have earned and may need later. In essence, United is demanding 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 19 of 33 PageID 367
15

that those “accommodated” employees pay themselves with their own money while on leave. 

At the same time, United cannot show any burden sufficient to justify its unreasonable 

accommodation. Under the ADA, “the term ‘undue hardship’ means an action requiring 

significant difficulty or expense.” 42 U.S.C. § 12111(10)(A). United cannot identify any 

“significant difficulty or expense” associated with granting accommodations to allow employees 

who requested medical accommodations to continue working with mitigation measures in place 

like mask wearing, periodic antibody testing, or periodic COVID-19 testing. As Plaintiffs 

demonstrated above, there were a host of alternative, reasonable accommodations United could 

have considered. Given the availability of alternatives, United cannot explain why indefinite 

unpaid leave is the only available accommodation—particularly, as Plaintiffs will show, where

such an accommodation system will be little or no more expensive—and perhaps more 

expensive—than merely granting accommodation requests and instituting mitigation measures. In 

fact, United has already conceded that it can institute mitigation measures—it is currently 

developing a periodic-testing regime for employees. See Limacher Decl. ¶ 22 (Def.’s App.121).5 

2. Plaintiffs are also likely to succeed on their ADA retaliation claims. The ADA makes 

it unlawful to retaliate against employeesseeking an accommodation. 42 U.S.C. § 12203(a). ADA

retaliation claims are “analyzed similarly to cases under” Title VII. Dickerson v. United Parcel 

Serv., No. 3:95-CV-2143, 1999 WL 966430, at *7 (N.D. Tex. Oct. 21, 1999) (citing cases). 

5 United’s failure to consider such accommodations also undercuts its reliance on the direct threat 

defense. TRO Opp. 16-17. United states that, because “COVID . . . poses a direct threat,” it may 

place all unvaccinated employees who request an accommodation on unpaid leave. Id. at 17. 

United fails to provide authority for such a sweeping interpretation of the direct threat defense and, 

moreover, United fails to acknowledge that there are other mitigation measures that decrease the 

“direct threat” COVID poses. Further, United fails to acknowledge any risks posed by 

unvaccinated passengers, unvaccinated United employees from other countries flying with 

U.S.-based crews, or unvaccinated pilots of other airlines flying for free in United cockpit 

jumpseats or in the cabin.

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 20 of 33 PageID 368
16

Requesting a “reasonable accommodation under the ADA may constitute . . . protected activity.” 

Tabatchnik v. Cont’l Airlines, 262 F. App’x 674, 676 (5th Cir. 2008). There can be no dispute that 

United responded with adverse employment actions—threatening each “accommodated” 

employee with indefinite unpaid leave and lost benefits. See Love, 1997 WL 278126, at *6.

Finally, Plaintiffs will show that their ADA-accommodation request led United to subject 

them to adverse employment actions. Not only are the adverse actions close in time to the 

protected activity, thereby suggesting a causal connection, see Breeden, 532 U.S. at 273, but Mr. 

Kirby made not-so-veiled threats against anyone who dared request a medical accommodation, 

stating that “very few people” would receive accommodations and that individuals requesting such 

an accommodation were “putting [their] job[s] on the line.” Hamilton Aff. ¶ 15 (App.9). This 

antipathy will certainly overcome any attempt by United to identify a legitimate, nonretaliatory 

reason for its actions. Thus, Plaintiffs’ ADA-retaliation claims are likely to succeed.

C. Without preliminary injunctive relief, Plaintiffs will suffer irreparable injury.

Plaintiffs will also show that they will suffer irreparable injury absent a preliminary 

injunction. United has put its religious and disabled workers in an impossible position—take the 

COVID-19 vaccine, at the expense of their religious beliefs and health, or face a lengthy period of 

unpaid leave. Unless the Court enjoins United’s actions, Plaintiffs will be irreparably harmed. 

An irreparable harm is one that “cannot be undone,” and an injunction is appropriate if the 

“anticipated injury is imminent and irreparable.” ADT v. Capital Connect, 145 F. Supp. 3d 671, 

694 (N.D. Tex. 2015). In this case, Plaintiffs face many harms that warrant preliminary injunctive 

relief. Most significantly, United is using a short deadline, coupled with the threat of a draconian 

“accommodation,” to compel its employees to violate their religious beliefs or put their health at 

risk. Without vaccination, United employees face formal or effective termination within days. 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 21 of 33 PageID 369
17

One Fort Worth-area man’s story proves the immediate harm. David Lockwood—who 

works at DFW—requested a religious accommodation. See Lockwood Aff. ¶¶ 1, 3 (App.33). 

Because he could not afford to be without income for an extended period, he ultimately decided to 

violate his religious beliefs and acquiesce to United’s coercion. See id. ¶ 6 (App.33). Mr. 

Lockwood is likely not alone as the threat of immediate loss of income may force many United 

employees to forgo their religious beliefs and their health. Considering such significant and 

immediate harms facing Plaintiffs and other United employees, it is unsurprising that employees 

may consider violating their beliefs or compromising their health to receive the vaccine. See 

Lockwood Aff. ¶¶ 6, 8 (App.33–34). If they do so, the harm will be permanent—the breach of 

religious belief will already have occurred—and the Court cannot later fashion a remedy to undo 

that harm. Understanding the irreparable nature of such harms, the United States District Court 

for the Northern District of New York recently issued a temporary restraining order enjoining the 

New York Department of Health from enforcing a mandate (lacking any accommodation 

provisions) that all health care workers receive the COVID-19 vaccine by September 27, 2021. 

See Order, Dr. A. v. Hochul, No. 21-cv-1009 (N.D.N.Y. Sept. 14, 2021), ECF No. 7.

Employees who, despite United’s coercive actions, refuse to receive the vaccine for 

religious or medical reasons also face additional irreparable harms. While it is true that United 

may be able to compensate its employees for lost wages later, that is cold comfort for employees 

and their families who will face a host of serious and irreparable injuries resulting from their loss 

of salary. Ms. Hamilton will lose the income and medical insurance that she currently uses to pay 

for her husband’s cancer treatment. See Hamilton Aff. ¶¶ 11-14 (App.8). Indeed, Ms. Hamilton’s 

current treatment decisions for her husband are dependent upon whether she will have a paying 

job after October 15, 2021. See id. Mr. Castillo will be homeless at the end of October if United 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 22 of 33 PageID 370
18

places him on unpaid leave. See Castillo Aff. ¶ 13 (App.19). Mr. Sambrano will need to determine 

how he can continue paying for his child’s college education and whether his family will need to 

consider alternative education options. See Sambrano Aff. ¶ 17 (App.4). Similarly, Ms. Jonas’ 

husband is disabled, and his care requires her salary and medical insurance. See Jonas Aff. ¶ 11

(App.24). Placement onto extended unpaid leave will prevent Ms. Jonas from providing her 

husband the care he needs. See id. Additionally, the threat of unpaid leave has caused Mr. 

Turnbough significant stress, substantially increasing the risk that his multiple sclerosis will 

relapse. See Turnbough Aff. ¶¶ 14–15 (App.15). Surprisingly, United calls these harms 

“speculative.” TRO Opp. 19-20. These harms are both likely and imminent. 

While the irreparable injury analysis does not typically consider harms that can be “undone 

through monetary relief,” ADT, 145 F. Supp. 3d at 694, it is equally true, as the Supreme Court 

has held, that even “a month without a paycheck [is] a serious hardship,” Burlington N., 548 U.S. 

at 72. Many aspects of these financial harms are not easily redressed by damages—serious 

physical and psychological consequences of impending homelessness, loss of life-saving medical 

treatment, and changes in education decisions due to lost income. Further, employees placed on 

unpaid leave will lose seniority within United’s seniority-based system beginning on the 91st day 

of unpaid leave, which cannot be undone. That is why the Supreme Court could find “no reason 

to believe that a court could not have issued an injunction where an employer suspended an 

employee for retaliatory purposes, even if that employer later provided backpay.” Id.

Moreover, United’s employees will face irreparable deterioration of their job skills if they 

are placed on unpaid leave. For example, pilots must remain up to date on current technology and 

fly frequently in order to maintain their skills. As Plaintiffs will demonstrate, being forced onto 

leave will cause those perishable skills to deteriorate, and no amount of financial compensation on 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 23 of 33 PageID 371
19

the backend can return to employees the time they lost—potentially years—during which they 

could have further developed the skills necessary for their careers, and skills that would increase 

their value to United and, potentially, other carriers. The same is true of other positions.

United’s employees also face irreparable dignitary, psychological, and reputational harms 

from being effectively terminated for discriminatory reasons. “If Defendants deprive [plaintiffs] 

of [their] employment . . . they will also deprive [them] of [their] title and dignity. . . . These are 

intangibles not aptly measured or compensable by any monetary amount.” Quiles Rodriguez v. 

Calderon, 172 F. Supp. 2d 334, 344 (D.P.R. 2001). And there are many psychological harms that 

accompany the loss of a paycheck, such as: the risk of a stress-induced multiple sclerosis relapse 

(Turnbough Aff. ¶ 15 (App.15)); marital strain (Kincannon Aff. ¶ 12 (App.29)); family stress 

(Sambrano Aff. ¶ 17 (App.4)); and stress-induced high blood pressure (Jonas Aff. ¶ 14 (App.24)).

Additionally, effectively terminating Plaintiffs stigmatizes them, harms their reputations, and 

makes transfer to another airline for employment difficult—all because of their religious beliefs 

and disabilities. Although some courts have found that plaintiffs did not show a risk of reputational 

harm sufficient to constitute irreparable injury, see, e.g., Sampson v. Murray, 415 U.S. 61 (1974),

the Supreme Court has explicitly “recognize[d] that cases may arise in which the circumstances

surrounding an employee’s discharge, together with the resultant effect on the employee, may so

far depart from the normal situation that irreparable injury might be found,” id. at 92 n.68. This is

such a case. United has discriminated against its employees on the basis of their religious beliefs

and disabilities. That discrimination, coupled with the reputational and psychological harms it will

cause, is the kind of “extraordinary” case the Supreme Court anticipated in Sampson. Id.

In addition, regardless of whether employees accept effective termination or receive the

vaccine despite their religious and health concerns, United has caused them irreparable injury by

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 24 of 33 PageID 372
20

simply forcing them to choose between their livelihood and their right to live out their faith absent

undue hardship from their employer. In another COVID-19 case, the Supreme Court held that

“[t]he loss of First Amendment freedoms, for even minimal periods of time, unquestionably

constitutes irreparable injury.” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67

(2020) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.)). So too with statutory

anti-discrimination and religious-freedom rights. Title VII promises people of faith that their

religious beliefs will be reasonably accommodated, and the ADA promises the same for disabled

individuals. “The short of the matter is that under Title VII”—and the ADA—employees do not

have to choose between their religious beliefs and employment.” Lawson v. State of Wash., 319

F.3d 498, 502 (9th Cir. 2003) (dissenting op.). Yet United’s “accommodations” subject its

employees to that forbidden discrimination by forcing employees to choose daily between their

beliefs and their livelihood. Whichever they choose, they lose.

The Court may prevent these harms by granting the preliminary injunction. Again, United 

may institute a COVID-19 vaccine mandate generally. Plaintiffs merely ask that United comply 

with federal civil rights laws by engaging with individuals seeking religious or medical 

accommodations, and by granting reasonable accommodations for those individuals after a goodfaith interactive process. By enjoining United’s mandate for those employees with religious or 

medical bases for requesting accommodations, the Court will ensure that it is able to fashion an 

appropriate remedy later. If the Court does not, Plaintiffs (and other United employees) will be

irreparably harmed.

D. Plaintiffs’ injury outweighs any potential hardship to United.

The harms discussed above are serious and irreparable and they outweigh any hypothetical 

harm the injunction may cause. Moreover, any claim that the broad mandate must go into effect 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 25 of 33 PageID 373
21

immediately is false; United has operated since spring 2020 without such a mandate and there is 

no compelling reason why it cannot continue doing while engaging in the interactive process 

required by federal law. Had United engaged in this process, it would have already identified 

countless other ways to accommodate Plaintiffs while also protecting public health—mask 

wearing, periodic antibody testing, and periodic COVID testing are just a few options. Plaintiffs 

do not claim that United must allow them to work without any mitigation measures. Rather, 

Plaintiffs merely ask the Court to require United to follow federal civil rights laws, engage in the 

interactive process, and develop reasonable accommodations that consider Plaintiffs’ religious 

beliefs and health concerns on the one hand, and the public’s health interests on the other hand. 

Requiring United to comply with the law does not impose a harm outweighing Plaintiffs’ injury.

While United argues that safety concerns over COVID-19 create a harm for the airline in 

the case of an injunction, this argument is belied by United’s own conduct. Setting aside the fact 

that United’s COVID-19 safety precautions have lessened over time, not increased, United:

(1) does not require all of its employees to be vaccinated—only those living in the United States—

even though United employees from around the world travel and work with one another; 

(2) allegedly plans to allow some “accommodated” U.S. employees to return to work in the future 

with mitigation measures in place; (3) does not require pilots from other airlines flying in the 

cockpit or cabin of United aircraft to be vaccinated; and (4) does not require any passengers to be 

vaccinated or even show proof of a negative COVID-19 test. See Compl. ¶ 32. Moreover, United’s 

vaccine mandate does not apply to regional airline partners that fly United customers on shorter 

routes. Id. It likewise does not apply to the vendors who work alongside United employees every 

day. Thus, no matter the reason United decided to require vaccinations for its employees, there is 

no safety justification that can support a blanket policy that fails to account for individual 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 26 of 33 PageID 374
22

situations. Perhaps that is why federal civil rights laws require United to engage in an interactive

process with requesters in the first place. 

E. Granting the injunction will serve the public interest.

An injunction preserving the status quo while the EEOC considers Plaintiffs’ claims will 

serve the public interest. For example, as Plaintiffs have already demonstrated, allowing 

employees to exercise religious freedom by making decisions in accordance with their sincerely 

held religious beliefs is a public interest of the highest order. TRO Mot. 22–23 (citing cases).

Recognizing religious freedom’s centrality to the public interest, the Supreme Court has

protected religious exercise even when faced with competing public health considerations. See,

e.g., Tandon v. Newsom, 141 S. Ct. 1294, 1296–98 (2021) (per curiam) (collecting cases and 

granting a preliminary injunction against COVID-19 public health order restricting religious 

exercise). “Even in a pandemic,” religious freedom “cannot be put away and forgotten.” Roman

Cath. Diocese, 141 S. Ct. at 68. 

The same is true of allowing individuals to make medical choices—in consultation with 

their doctors—to protect their health. “No right is held more sacred, or is more carefully guarded 

by the common law, than the right of every individual to the possession and control of his own 

person, free from all restraint or interference of others, unless by clear and unquestionable authority 

of law.” Union Pac. Ry. Co. v. Botsford, 141 U.S. 250, 251 (1891). No law permits United to 

interfere with that right—indeed, the ADA exists to ensure it cannot do so. The Supreme Court 

has recognized the right to medical decision-making even in the face of countervailing societal 

interests. See Winston v. Lee, 470 U.S. 753, 766 (1985) (recognizing a right to medical decisionmaking and holding that a court could not force a defendant, for evidentiary purposes, to have 

surgery to remove a bullet fired by a victim). As Plaintiffs already demonstrated, the public interest 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 27 of 33 PageID 375
23

in allowing individuals to determine their need for a medical accommodation is particularly strong 

as the countervailing interest in stopping the spread of COVID-19 can be achieved through other 

means such as mask wearing and testing. TRO Mot. 24–25 (citing cases).

The public also has an interest in United’s disabled employees retaining their employment 

and their right to make their own medical decisions. See Martin v. Metro. Atlanta Rapid Transit 

Auth., 225 F. Supp. 2d 1362, 1383 (N.D. Ga. 2002). United’s discriminatory policy runs contrary 

to that interest by forcing its disabled employees out of the workforce—potentially for years. This 

decision will have devastating economic consequences for Plaintiffs and those similarly situated, 

and those economic impacts affect the community at large. 

To be sure, United will likely argue that an important public interest in eradicating 

COVID-19 outweighs Plaintiffs’ religious beliefs and medical concerns. Plaintiffs do not dispute 

the important goal of stopping COVID-19’s spread, but it does not override United’s obligations 

under federal civil rights law. And it certainly does not allow United to effectively terminate all 

employees who request an accommodation. By United’s own admission, nearly all of its 

workforce has now received a COVID-19 vaccine. TRO Mot. 25. Moreover, a large portion of 

the public likely possesses antibodies against COVID-19 because of previous infection. 

Accordingly, there is no pressing public interest permitting United to deny religious and medical 

accommodation requests for this relatively small number of employees. Plaintiffs’ request for a 

narrow injunction is thus supported by the public interest.

II. Plaintiffs Have Properly Complied with Their EEOC Filing Requirements, and That 

Compliance Poses no Obstacle to Preliminary Injunctive Relief.

Finally, United is wrong to argue (TRO Opp. 18–19) that Plaintiffs’ compliance with 

EEOC filing requirements forecloses preliminary injunctive relief. To be sure, each Plaintiff has 

a pending charge with the EEOC complaining of United’s discriminatory and retaliatory actions. 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 28 of 33 PageID 376
24

See Sambrano Aff. ¶ 19 (App.4); Hamilton Aff. ¶ 19 (App.9); Turnbough Aff. ¶ 18 (App.16); 

Castillo Aff. ¶ 16 (App.20); Jonas Aff. ¶ 16 (App.25); Kincannon Aff. ¶ 15 (App.30). But this 

does not prevent the Court from issuing an injunction against United’s treatment of employees 

with religious or medical objections to the vaccine mandate. While individuals asserting claims 

under Title VII or the ADA must complete the EEOC’s administrative process before seeking 

“final relief” through a civil action, courts in this Circuit may grant preliminary injunctive relief 

on those claims where “irreparable injury is shown and likelihood of ultimate success has been 

established[.]” Drew v. Liberty Mut. Ins., 480 F.2d 69, 71, 72 (5th Cir. 1973). 

In such cases, an “individual employee may bring her own suit to maintain the status quo 

pending the action of the [EEOC] on the basic charge of discrimination.” Id. at 72; Bailey v. Dallas 

Cty. Sch., No. 3:16-cv-1642-M, 2016 WL 7638146, at *2 n.4 (N.D. Tex. Dec. 9, 2016)

(“Exhaustion of administrative remedies in the ADA context is similarly a condition precedent 

rather than a jurisdictional prerequisite to suit.”). Courts outside this Circuit agree. TRO Mot. 7. 

And this conclusion is entirely consistent with the history of Title VII. See id. at 7-8.

United’s attempt to distinguish Drew fails. TRO Opp. 18–19. First, the smattering of 

district court cases United cites—all decades old and from outside this Circuit—are, unlike Drew, 

nonbinding. See id. at 18 n.5. Nor was Drew abrogated in Fort Bend County v. Davis, 139 S. Ct. 

1843, 1851 (2019). TRO Opp. 19. Instead, Fort Bend confirms Drew’s status as good law; the 

Supreme Court merely held that Title VII’s exhaustion requirement is not jurisdictional. 139 S. 

Ct. at 1846. That holding neither implicates nor abrogates Drew’s holding on the availability of 

preliminary injunctive relief before the completion of the administrative process. 

Preliminary injunctive relief is imperative here to maintain the status quo of Plaintiffs’ 

employment at the time they filed their Complaint. Without it, Plaintiffs face an impossible choice. 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 29 of 33 PageID 377
25

Plaintiffs must decide whether to receive the COVID-19 vaccine or face termination—literally or 

functionally. It is understandable that United employees may consider acquiescing to the mandate, 

as many have already been coerced into doing, thereby risking their health and/or religious beliefs 

in favor of their livelihood. Lockwood Aff. ¶ 6 (App.33). Without preliminary relief, others will 

likely do so as United continues to withhold paychecks, and that decision—with the resulting 

breach of religious scruples or subjection to health risks— cannot be reversed by a subsequent 

decision from the EEOC or this Court. Thus, this case should not merely “proceed in the normal 

course” (TRO Opp. 1); the impossible choice facing Plaintiffs is of United’s own making and 

United should not be permitted to use lengthy litigation schedules to continue coercing employees 

to violate their religious beliefs or health. “[T]o preserve [this] court’s ability to later order 

meaningful relief,” it must enter preliminary injunctive relief now. Drew, 480 F.2d at 74.

CONCLUSION

Plaintiffs ask this Court to preserve the status quo to allow the EEOC to continue reviewing

Plaintiffs’ administrative charges regarding United’s unlawful conduct. Specifically, to prevent 

irreparable harm, the Court should enjoin United from: (1) terminating or placing on indefinite 

leave any employee who asserts a religious or medical basis for seeking an accommodation; 

(2) reducing in any manner those employees’ benefits or taking any other adverse employment 

actions against them; (3) taking further retaliatory actions toward those who requested 

accommodations; and (4) denying as untimely any request for an accommodation. By granting a 

preliminary injunction now, the Court will ensure that the EEOC and this Court will be able to 

order meaningful relief later. 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 30 of 33 PageID 378
26

October 1, 2021 Respectfully submitted,

/s/ John C. Sullivan

John C. Sullivan

Texas Bar No. 24083920

john.sullivan@the-sl-lawfirm.com

S|L LAW PLLC

610 Uptown Boulevard, Suite 2000

Cedar Hill, TX 75104

Telephone: (469) 523-1351

Facsimile: (469) 613-0891

/s/ Robert c. Wiegand

Robert C. Wiegand

Texas Bar No. 00791924

bob.wiegand@swolegal.com

Melissa J. Swindle

Texas Bar No. 24013600

Melissa.swindle@swolegal.com

Stewart Wiegand & Owens PC

325 N. St. Paul Street, Suite 3750

Dallas, TX 75201

Telephone: (469) 899-9800

Facsimile: (469) 899-9810 

/s/ Mark R. Paoletta

Mark R. Paoletta* 

D.C. Bar No. 422746

mpaoletta@schaerr-jaffe.com

Gene C. Schaerr* 

D.C. Bar No. 416368

Brian J. Field* 

D.C. Bar No. 985577

Kenneth A. Klukowski* 

D.C. Bar No. 1046093

Joshua J. Prince*

D.C. Bar No. 1685532

Annika M. Boone*

Utah Bar No. 17176

SCHAERR |JAFFE LLP

1717 K Street NW, Suite 900

Washington, DC 20006

Telephone: (202) 787-1060

Facsimile: (202) 776-0136

* Admitted pro hac vice 

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 31 of 33 PageID 379
27

Counsel for Plaintiffs and the 

Proposed Class

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 32 of 33 PageID 380
CERTIFICATE OF SERVICE

On October 1, 2021, I filed the foregoing document with the clerk of court for the United 

States District Court, Northern District of Texas. Notice and a copy of the foregoing has been 

provided to these attorneys via the Court’s ECF system and via email.

/s/ Robert C. Wiegand

Robert C. Wiegand, Attorney for Plaintiffs

Case 4:21-cv-01074-P Document 37 Filed 10/01/21 Page 33 of 33 PageID 381