IN THE 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. 

UNITED AIRLINES, INC., 

 

Defendant. 

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Civil Action No. 4:21-01074-P 

DEFENDANT’S SUPPLEMENTAL BRIEF 

Case 4:21-cv-01074-P Document 262 Filed 05/02/24 Page 1 of 8 PageID 19175
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INTRODUCTION 

The Supreme Court’s recent decision in Muldrow v. City of St. Louis, 144 S. Ct. 967 (2024),

does not require any change in this Court’s dismissal of the claims of the two below-the-wing 

employees (Ms. Hamilton and Mr. Castillo) who received masking-and-testing accommodations. 

Indeed, Muldrow’s core holding—that a Title VII plaintiff must allege “some harm” to identifiable 

terms and conditions of employment, id. at 974—is fully consistent with the Fifth Circuit precedent 

that this Court applied in concluding that Ms. Hamilton and Mr. Castillo failed to allege any legally 

cognizable, more-than-de minimis harm from masking and testing. Muldrow likewise supports, 

rather than undermines, this Court’s dismissal of Plaintiffs’ retaliation claims, which are flawed 

since Plaintiffs were treated better, not worse, because they requested accommodations. 

Nor does Muldrow alter the reasons why class certification should be denied (regardless of 

whether the claims of Ms. Hamilton and Mr. Castillo are revived). If anything, Muldrow further 

undercuts Plaintiffs’ theory that putative class members suffered some actionable injury when they 

were “threatened” with unpaid leave but were never put on leave or otherwise suffered harm with 

respect to any “identifiable term or condition of employment.” Id.

ARGUMENT 

I. This Court’s Dismissal of the Masking-and-Testing Claims Is Entirely Consistent 

With Muldrow. 

In Muldrow, the Supreme Court held that under Title VII, an employee challenging a 

transfer must plead and prove “some harm respecting an identifiable term or condition of 

employment.” 144 S. Ct. at 974. The Court thus repudiated the decisions of certain lower courts 

that had instead required the harm to be “significant,” “[o]r serious, or substantial, or any similar 

adjective suggesting that the disadvantage to the employee must exceed a heightened bar.” Id. at 

972, 974 (emphasis added); see also id. at 973 n.1, 975 (citing such cases). 

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Consistent with Muldrow, this Court’s dismissal of the claims of Ms. Hamilton and Mr. 

Castillo did not apply a “significant” harm requirement or anything “similar.” Compare Muldrow, 

144 S. Ct. at 974, with ECF 231 at 6–7. After all, this Court was applying recent Fifth Circuit 

precedent that had already rejected such a heightened standard. See Hamilton v. Dall. Cnty., 79 

F.4th 494 (5th Cir. 2023) (en banc); Harrison v. Brookhaven Sch. Dist., 82 F.4th 427 (5th Cir. 

2023) (per curiam). Instead, this Court simply reaffirmed that “Title VII does not permit liability 

for de minimis workplace trifles.” ECF 231 at 5. 

Muldrow did not undermine that holding. Requiring “some harm” is just the flip side of 

rejecting “de minimis harm.” Because “[t]he law does not take account of trifles,” de minimis 

harm is, legally speaking, no harm at all. See id. at 7. That is not remotely a “heightened bar” in 

any way “similar” to requiring “significant” harm. Muldrow, 144 S. Ct. at 974. Tellingly, while 

Muldrow carefully catalogued the repudiated cases that had adopted such heightened standards, 

see id. at 973 n.1, it did not purport to abrogate the many cases applying a de minimis standard. 

See, e.g., Harrison, 82 F.4th at 431–32 & n.5 (citing cases). 

In applying a de minimis standard to Ms. Hamilton and Mr. Castillo, this Court concluded 

that the law “prevents judges from supervising a company’s decisions regarding . . . where 

employees take lunch, how often they submit COVID-19 test results, and the type of masks they 

wear.” ECF 231 at 7. Such “trifles” are not remotely comparable to the harms identified by 

Muldrow. Compare id., with Muldrow, 144 S. Ct. at 977 (noting that transfer diminished the 

employee’s responsibilities, deprived her of fringe benefits, and required more work on weekends), 

and id. at 975 & n.2 (noting similar harms in repudiated lower court cases). In sum, whether the 

allegations here are described as involving only “de minimis harm” or lacking “some harm,” the 

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conclusion is the same: Ms. Hamilton and Mr. Castillo fail to state a claim regarding the maskingand-testing accommodations they received.1

II. Muldrow Does Not Support, and Further Refutes, Plaintiffs’ Retaliation Claims. 

This Court dismissed Plaintiffs’ retaliation claims because “[n]o reasonable worker would 

be deterred by United’s unpaid leave policy from seeking an accommodation” as termination was 

the alternative. ECF 231 at 15. In other words, far from being “treated materially worse than if 

they had not sought the accommodation at all,” Plaintiffs were treated better. Id. (citing Burlington 

N. & Sante Fe Ry. Co. v. White, 548 U.S. 53, 54 (2006)). Muldrow’s holding that Title VII always 

requires “some harm” confirms that this Court correctly dismissed these retaliation claims. 144 S. 

Ct. at 977 (“The transfer must have left her worse off . . . .”). In fact, Muldrow reaffirmed that, in 

contrast to discrimination claims, retaliation claims require more than “some harm”; they require 

harm “serious enough” to chill an employee from engaging in protected activity in the first place. 

See id. at 976 (citing Burlington, 548 U.S. at 68). 

III. Muldrow Does Not Alter the Class Certification Analysis. 

A. United’s Arguments Why the Proposed Classes Fail to Satisfy Rule 23 Are 

Not Materially Impacted by Muldrow. 

Almost all of United’s arguments why Plaintiffs’ proposed classes cannot be certified 

remain exactly the same whether or not Muldrow requires reviving Ms. Hamilton’s masking-andtesting claim. Either way, the Rule 23 requirements of commonality, predominance and 

superiority cannot be satisfied in light of the many individualized Title VII and ADA issues—

protected status; reasonableness of accommodation; undue hardship from accommodation; and 

defenses to liability—especially given Plaintiffs’ claims for monetary relief. See ECF 246. 

 1

 In all events, this Court also held that all of Mr. Castillo’s claims are time-barred, and 

Muldrow has no relevance at all to that independent basis for the dismissal of his claims. 

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Only two arguments United made opposing class certification warrant brief discussion: 

(1) the adverse-action requirement and (2) Rule 23(a)’s typicality requirement. Though their 

contours change slightly, the strength of these arguments remains undiminished. 

First, United contended that the need to establish adverse action for each putative class 

member will preclude commonality and predominance because it will require an individualized 

assessment of each employee’s circumstances: employees like Plaintiff Jonas may allege some 

harm (e.g., due to the loss of incidental compensation in an alternative job), while others like 

Plaintiff Hamilton may not. ECF 246 at 24, 38. Even if this Court decides that Ms. Hamilton’s 

allegations now suffice under Muldrow, there still would need to be individualized inquiries 

whether each of the other putative class members could claim the same. After all, the class 

discovery record showed that many employees had no objection to masking and testing, ECF 246 

at 21 & App. 67–72 (Table 8), and so they, at the very least, suffered no harm under Muldrow.

Second, on typicality, even if Ms. Hamilton (and/or Mr. Castillo) were to return to the case, 

they, like the other named Plaintiffs, have “circumstances unique to [them that] will likely become 

the litigation’s focus.” See Hirsch v. USHealth Advisors, LLC, 337 F.R.D. 118, 133 (N.D. Tex. 

2020); ECF 246 at 29–31. Ms. Hamilton contended that she was unusually isolated from other 

United personnel compared to other non-customer-facing employees because she worked alone 

during the night shift in an office (Suppl. App. 3–6), and Mr. Castillo worked exclusively outside 

(Suppl. App. 12–13). As a result, their objections to masking and testing would not be 

representative of non-customer-facing employees who worked indoors in close proximity to other 

employees.2

 

 2

 If Ms. Hamilton were to return to the case, United acknowledges that it could no longer 

argue that the masking-and-testing (b)(3) subclass lacks a named Plaintiff with a Title VII claim, 

see ECF 246 at 31, but all of the other arguments against certifying that subclass would remain. 

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B. Plaintiffs’ Argument That an Unrealized “Threat” of Unpaid Leave Is an 

 Actionable Common Issue Is Refuted by Muldrow. 

Muldrow puts the nail in the coffin of Plaintiffs’ argument that they can allege a common 

injury arising from a universal “threat” of unpaid leave. ECF 239 at 15–16. Muldrow expressly 

emphasized that the requisite “harm” has to be caused by “discrimination” with respect to an 

“identifiable term or condition” of employment. 144 S. Ct. at 974 (explaining that the latter phrase 

“circumscribes the injuries that can give rise to a suit like this one”). And merely telling certain 

employees that they would be put on leave—without ultimately doing so—means that they never 

suffered any discrimination at all with respect to an “identifiable term or condition of 

employment.” As this Court ruled, “United’s unpaid leave policy did not affect [Hamilton or 

Castillo’s] terms, conditions, or privileges of employment.” ECF 231 at 8. Nothing in Muldrow

suggests that an unactualized threat constitutes “some harm” flowing from discrimination with 

respect to terms or conditions of employment. To the contrary, Muldrow involved a job transfer 

that all parties agreed “implicated ‘terms’ and ‘conditions’ of [her] employment, changing nothing 

less than the what, where, and when of her [ ] work.” 144 S. Ct. at 974. 

Moreover, even if the “threat” of unpaid leave were an adverse action, the accommodation 

each employee ultimately received would still bear on reasonableness and undue hardship, and 

there would remain individualized inquiries into protected status, defenses, and damages. See ECF 

246 at 14–42. For all of those reasons, commonality, predominance, and superiority still would 

not be satisfied. 

CONCLUSION 

Muldrow does not alter the conclusion that this Court should deny Plaintiffs’ motions for 

partial reconsideration of the motion to dismiss ruling and for class certification. 

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Dated: May 2, 2024 Respectfully submitted, 

 /s/ Russell D. Cawyer 

Russell D. Cawyer 

TX Bar No. 00793482 

KELLY HART & HALLMAN LLP 

201 Main Street, Suite 2500 

Fort Worth, TX 76102 

Telephone: +1.817.878.3562 

Facsimile: +1.817.335.2820 

Email: russell.cawyer@kellyhart.com 

Donald J. Munro 

D.C. Bar No. 453600 

JONES DAY 

51 Louisiana Avenue, NW 

Washington, D.C. 20001 

Telephone: +1.202.879.3939 

Facsimile: +1.202.626-1700 

Email: dmunro@jonesday.com 

Jordan M. Matthews 

IL Bar No. 6300503 

JONES DAY 

110 North Wacker Drive, Suite 4800 

Chicago, IL 60606 

Telephone: +1.312.782.3939 

Facsimile: +1.312.782.8585 

Email: jmatthews@jonesday.com 

Alexander V. Maugeri 

NY Bar No. 5062666 

JONES DAY 

250 Vesey Street 

New York, NY 10281 

Telephone: +1.212.326.3939 

Facsimile: +1.212.755.7306 

Email: amaugeri@jonesday.com 

ATTORNEYS FOR DEFENDANT 

UNITED AIRLINES, INC. 

 

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CERTIFICATE OF SERVICE 

I hereby certify that a true and correct copy of the foregoing document was served via email to all counsel of record this 2nd day of May, 2024: 

John C. Sullivan 

Austin R. Nimocks 

SL LAW, PLLC 

610 Uptown Blvd., Ste. 2000 

Cedar Hill, Texas 75104 

john.sullivan@the-sl-lawfirm.com 

austin.nimocks@the-sl-lawfirm.com 

Mark R. Paoletta 

Gene C. Schaerr 

Brian J. Field 

Cristina Martinez Squiers 

Kenneth A. Klukowski 

Joshua J. Prince 

Annika M. Barkdull 

SCHAERR JAFFE, LLP 

1717 K Street NW, Ste. 900 

Washington, D.C. 20006 

mpaoletta@schaerr-jaffe.com 

gschaerr@schaerr-jaffe.com 

bfield@schaerr-jaffe.com 

csquiers@schaerr-jaffe.com 

kklukowski@schaerr-jaffe.com 

jprince@schaerr-jaffe.com 

abarkdull@schaerr-jaffe.com 

 /s/ Russell D. Cawyer 

 Russell D. Cawyer 

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