IN THE UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

DAVID SAMBRANO, et al., individually, 

and on behalf of all others similarly situated,

Plaintiffs, 

§ 

§ 

§ 

§ 

§ 

§ 

v. 

UNITED AIRLINES, INC., 

Defendant. 

§ 

§ 

§ 

§ 

§ 

Civil Action No. 4:21-CV-01074-P 

DEFENDANT’S OPPOSITION TO PLAINTIFFS’ MOTION FOR 

RECONSIDERATION OF ORDER PARTIALLY GRANTING MOTION TO DISMISS 

Case 4:21-cv-01074-P Document 244 Filed 02/06/24 Page 1 of 29 PageID 9299
TABLE OF CONTENTS

Page

 -iINTRODUCTION ......................................................................................................................... 1

BACKGROUND ........................................................................................................................... 2

LEGAL STANDARDS ................................................................................................................. 2

ARGUMENT ................................................................................................................................. 3

I. The Court Did Not Err in the Legal Standards it Applied. ................................................ 4

II. The Court Correctly Dismissed Plaintiffs’ Retaliation Claims.......................................... 6

III. The Court Correctly Ruled That Castillo and Hamilton Did Not Suffer an Adverse 

Employment Action. ........................................................................................................ 10

IV. The Court Correctly Ruled That Castillo’s, Medlin’s and Rains’ Claims Are 

Time-Barred. .................................................................................................................... 14

A. Ms. Medlin’s Failure-To-Accommodate Claim Is Untimely. ............................. 15

B. Mr. Castillo’s Claims Are Untimely. ................................................................... 17

C. Mr. Rains’ Claims Are Untimely. ........................................................................ 19

V. Further Amendments to the Pleadings Would be Futile and Inequitable. ....................... 21

CONCLUSION ............................................................................................................................ 22

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 -iiTABLE OF AUTHORITIES 

CASES Page 

Allen v. Envirogreen Landscape Prof’ls, Inc., 

721 F. App’x 322 (5th Cir. 2017) ..............................................................................................2 

Brandon v. Sage Corp., 

808 F.3d 266 (5th Cir. 2015) .....................................................................................................7 

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

548 U.S. 53 (2006) .................................................................................................................6, 7 

Cicalese v. Univ. of Tex. Med. Branch, 

924 F.3d 762 (5th Cir. 2019) ...................................................................................................11 

Connor v. Harris Cnty., 

1992 WL 337420 (S.D. Tex. Sept. 17, 1992) ..........................................................................19 

Cooper v. Dall. Police Ass'n, 

609 F. App’x 213 (5th Cir. 2015) ............................................................................................18 

Das v. Am. Airlines, Inc., 

2020 WL 364264 (N.D. Tex. Jan. 21, 2020) ...........................................................................17 

Delaware State Coll. v. Ricks, 

449 U.S. 250 (1980) ...........................................................................................................15, 17 

Delhomme v. Caremark Rx Inc., 

232 F.R.D. 573 (N.D. Tex. 2005) ..............................................................................................5 

Dixon v. Garland, 

2024 WL 150509 (N.D. Tex. Jan. 12, 2024) ...........................................................................11 

EEOC v. Vantage Energy Servs., Inc., 

954 F.3d 749 (5th Cir. 2020) ...................................................................................................18 

Fed. Exp. Corp. v. Holowecki, 

552 U.S. 389 (2008) ......................................................................................................... passim 

Godwin Gruber, P.C. v. Deuschle, 

2003 WL 21283186 (N.D. Tex. May 28, 2003) ....................................................................2, 3 

Gonzales v. Pan Am. Labs., L.L.C., 

2017 WL 4758672 (N.D. Tex. Oct. 20, 2017) .........................................................................20 

Case 4:21-cv-01074-P Document 244 Filed 02/06/24 Page 3 of 29 PageID 9301
 -iiiGreer v. Fowler, 

2022 WL 394762 (N.D. Tex. Feb. 8, 2022) .........................................................................3, 21 

Groff v. DeJoy, 

600 U.S. 447 (2023) .................................................................................................................11 

Hamilton v. Dall. Cnty., 

79 F.4th 494 (5th Cir. 2023) ..............................................................................................10, 11 

Harrison v. Brookhaven Sch. Dist., 

82 F.4th 427 (5th Cir. 2023) ..............................................................................................10, 11 

Henson v. Bell Helicopter Textron, Inc., 

128 F. App’x 387 (5th Cir. 2005) ............................................................................................16 

In re Gulf States Long Term Acute Care of Covington, L.L.C., 

2014 WL 107870 (E.D. La. Jan. 9, 2014) ................................................................................21 

Jennings v. Towers Watson, 

11 F.4th 335 (5th Cir. 2021) ................................................................................................2, 14 

Jurach v. Safety Vision, LLC, 

72 F. Supp. 3d 698 (S.D. Tex. 2014) .......................................................................................16 

Koeppel v. Hartford Accident & Indem. Co., 

608 F. Supp. 3d 398 (E.D. La. 2022) .........................................................................................3

LeClerc v. Webb, 

419 F.3d 405 (5th Cir. 2005) .................................................................................................2, 3 

Lewis v. New York City Transit Auth., 

12 F. Supp. 3d 418 (E.D.N.Y. 2014) ...................................................................................9, 10 

Lindsey v. American Airlines, 

2023 WL 5807015 (N.D. Tex. Sept. 7, 2023) ..........................................................................11 

Lovelace v. Software Spectrum Inc., 

78 F.3d 1015 (5th Cir. 1996) .....................................................................................................5 

McNeill v. Tyson Fresh Meats, Inc., 

2023 WL 8532408 (N.D. Tex. Dec. 8, 2023) ..................................................................8, 9, 13 

Ojedis v. JetBlue Airways Corp., 

2008 WL 961884 (W.D. Tex. Apr. 9, 2008)............................................................................20 

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 -ivResidents Against Flooding v. Reinvestment Zone No. Seventeen, 

260 F. Supp. 3d 738 (S.D. Tex. 2017) .......................................................................................5 

Sambrano v. United Airlines, Inc., 

2022 WL 486610 (5th Cir. Feb. 17, 2022) ..............................................................................13 

Schiller v. Physicians Res. Grp. Inc., 

342 F.3d 563 (5th Cir. 2003) .....................................................................................................3 

Simmons v. Sabine River Auth. La., 

732 F.3d 469 (5th Cir. 2013) ...............................................................................................3, 21 

Simotas v. Kelsey-Seybold, 

211 F. App’x 273 (5th Cir. 2006) ............................................................................................15 

Tagore v. United States, 

735 F.3d 324 (5th Cir. 2013) ...................................................................................................14 

Taubenfeld v. Hotels.com, 

385 F. Supp. 2d 587 (N.D. Tex. 2004) ....................................................................................21 

Univ. of Tex. at El Paso v. Isaac, 

568 S.W.3d 175 (Tex. App. 2018) ...........................................................................................20 

Vetcher v. Sessions, 

2018 WL 4006813 (N.D. Tex. Aug. 7, 2018) ............................................................................3 

STATUTES

42 U.S.C. § 2000e-3 .........................................................................................................................9 

42 U.S.C. § 2000e-5 .................................................................................................................14, 18 

42 U.S.C. § 2000e(j) ........................................................................................................................9 

42 U.S.C. § 12112(b) ......................................................................................................................9 

42 U.S.C. § 12117(a) .....................................................................................................................14 

42 U.S.C. § 12203(a) .................................................................................................................9, 14 

Tex. Labor Code § 21.201 .............................................................................................................19 

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1 

INTRODUCTION 

Plaintiffs’ motion for reconsideration seeks an almost total do-over of the Court’s decision 

on United’s partial motion to dismiss. Their motion does not allege a discrete error on some 

particular point. Instead, according to the Plaintiffs, the Court did not get anything right – it 

supposedly “overlooked” facts, misread the allegations in the Second Amended Complaint, and 

misapplied the law on virtually every issue. Indeed, the Plaintiffs even accuse the Court of 

misunderstanding the elementary principles governing the standard of review under Rule 12(b)(6). 

They ask the Court to perform a complete 180, or failing that, to allow them to start over with yet 

another amended complaint. 

Nothing in their motion provides any valid basis for reconsideration. As explained in detail 

below, Plaintiffs did not and cannot show the Court made any legal or factual error that undermines 

(1) the dismissal of their ill-conceived retaliation claims; (2) the dismissal of failure-toaccommodate claims by Plaintiffs who were never placed on unpaid leave and did not suffer an 

adverse action; or (3) the dismissal of the time-barred Title VII claims. 

The Court should be particularly wary of granting reconsideration given the timing of 

Plaintiffs’ request. Because they waited until the very last moment to seek reconsideration, 

Plaintiffs’ proposed relief would, in effect, require redoing the class certification briefing, thereby 

delaying these proceedings yet again. Likewise, Plaintiffs’ alternative proposal to file a third 

amended complaint would not only be futile, but would be prejudicial to United given how far 

along we are in this case. 

For the better part of a year, Plaintiffs complained about how long this litigation has 

dragged on. But apparently Plaintiffs are only interested in expeditious resolution if they prevail. 

This Court should not condone dilatory and wasteful relitigation of its well-reasoned decision, 

especially at this point in the case. 

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BACKGROUND 

Plaintiffs have filed three complaints in this lawsuit, most recently the February 2023 

Second Amended Complaint (“SAC”). ECF Nos. 1, 67, 156. In its December 18, 2023 decision 

on United’s motion to partially dismiss the SAC (“MTD Order”), the Court “agree[d] with United 

that (1) Hamilton and Castillo have not suffered an adverse employment action, (2) United did not 

retaliate against Plaintiffs for seeking an accommodation, (3) Medlin, Rains, and Castillo’s claims 

are time-barred in full or in part, and (4) Jonas’s Title VII claim is beyond the scope of her EEOC 

charge.” MTD Order at 3. The Court denied the remainder of the motion to dismiss. Plaintiffs 

filed their motion for class certification on January 12, 2024, based on just the remaining Plaintiffs’ 

claims, and without mentioning the possibility of reconsideration. But then, on January 16, the 

final day to file for reconsideration of the Court’s December 18 order, Plaintiffs asked this Court 

to reverse itself on the first three rulings above (but do not seek reconsideration of the fourth 

ruling). ECF Nos. 241, 242 at 4–5. 

LEGAL STANDARDS 

Reconsideration. “A party may not use a Rule 59(e) motion to relitigate issues that were 

resolved to the movant’s dissatisfaction.” Godwin Gruber, P.C. v. Deuschle, 2003 WL 21283186, 

at *1 (N.D. Tex. May 28, 2003); see Jennings v. Towers Watson, 11 F.4th 335, 345 (5th Cir. 2021) 

(affirming denial of 59(e) motion because it “presented neither an error that undermined the 

correctness of the judgment nor newly discovered evidence nor an intervening change in law”); 

LeClerc v. Webb, 419 F.3d 405, 412 n.13 (5th Cir. 2005) (“A motion for reconsideration may not 

be used to rehash rejected arguments or introduce new arguments.”). Instead, a motion for 

reconsideration “is an extraordinary remedy that should be used sparingly.” Allen v. Envirogreen 

Landscape Prof’ls, Inc., 721 F. App’x 322, 328 (5th Cir. 2017). It should be denied unless the 

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3 

movant “clearly establish[es] either a manifest error of law” or “present[s] newly discovered 

evidence.” Schiller v. Physicians Res. Grp. Inc., 342 F.3d 563, 567 (5th Cir. 2003).1

Leave to Amend. Rule 15 provides for amendment as of right, at the latest, twenty-one 

days after the defendant files a motion to dismiss. See FED. R. CIV. P. 15(a). After that, Rule 

15(a)(2) requires consent or the court’s leave, and “leave to amend is ‘by no means automatic.’” 

Greer v. Fowler, 2022 WL 394762, at *7 (N.D. Tex. Feb. 8, 2022) (Pittman, J.). The Court may 

exercise its discretion to deny leave “for undue delay, [or] bad faith,” as well as “undue prejudice 

to the opposing party, or futility of a proposed amendment.” Id. (quoting Simmons v. Sabine River 

Auth. La., 732 F.3d 469, 478 (5th Cir. 2013)). A complaint is futile if it would still be “subject to 

dismissal” with the amendment. Simmons, 732 F.3d at 478. 

ARGUMENT 

Plaintiffs’ Motion (ECF No. 242 (“Mot.”)) seeks to repackage arguments this Court 

properly rejected, to raise arguments they could have raised but did not – either in their opposition 

brief (ECF No. 213) or their supplemental brief (ECF No. 227) – and does not identify any change 

in controlling law. Because these are not proper uses of a reconsideration motion, the Court may 

deny Plaintiffs’ effort to revive the dismissed claims and parties on this basis alone. LeClerc, 419 

F.3d at 412 n.13; Deuschle, 2003 WL 21283186, at *1. As described below, Plaintiffs’ arguments 

are also unavailing on the merits. 

 

1

 Courts follow a similar approach when a party seeks reconsideration under Rule 54(b). See 

Vetcher v. Sessions, 2018 WL 4006813, at *1 (N.D. Tex. Aug. 7, 2018) (explaining that “[i]n 

determining a motion under Rule 54(b), courts in this circuit have looked to the standards of 

Rule 59(e)”); see also Koeppel v. Hartford Accident & Indem. Co., 608 F. Supp. 3d 398, 402–03 

(E.D. La. 2022) (although reconsideration under Rule 54(b) is “less stringent” than under Rule 

59(e), regardless of the rule cited, a “motion to reconsider is not the proper vehicle for rehashing 

evidence, legal theories, or arguments that could have been offered or raised before”). 

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I. The Court Did Not Err in the Legal Standards it Applied. 

Plaintiffs begin by claiming that the Court confused the motion-to-dismiss standard with 

the merits standard because it required Plaintiffs to prove or “show” the elements of their claims 

rather than just plausibly allege them. Mot. at 5. In making that argument, they fixate on a few 

cherry-picked words and phrases in the Court’s decision. Id. 

A fair reading of this Court’s entire decision clearly demonstrates otherwise. For example, 

the heading of the section in the decision addressing the adverse-action element explains that 

“Castillo and Hamilton do not allege more than a de minimis adverse employment action.” MTD 

Order at 4 (emphasis added). The Court goes on to analyze at length why the various things that 

“Hamilton and Castillo allege” did not exceed “the de minimis standard” for adverse action that 

the Fifth Circuit has adopted. Id. at 6–7 (emphasis added). Likewise, as to retaliation, this Court 

relied on a fact that was “undisputed” in the Second Amended Complaint – i.e. that unvaccinated 

employees who did not seek an accommodation were terminated, MTD Order 15 (citing ECF No. 

156 at 2) – to support its purely legal conclusion that “[n]o reasonable worker” would have been 

deterred from seeking an accommodation. Id. (emphasis added). As to timeliness, the Court’s 

dismissal rested on the interpretation and application of Holowecki and the other controlling legal 

standards. Id. at 17–26. 

Plaintiffs nevertheless complain that “the Court’s decision did not address the plausibility 

standard even once when discussing the contents of the SAC.” Mot. at 5. But this Court clearly 

acknowledged and articulated “the plausibility standard” that governed its review. MTD Order at 

2. Likewise, it refused to dismiss the ADA failure-to-accommodate claims because it concluded 

that Jonas and Rains “ha[d] sufficiently pleaded disabilities within the meaning of the ADA—at 

least at the motion to dismiss stage.” Id. at 12. 

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The Court’s verbiage makes clear that it was not “ignoring” the plausibility standard with 

respect to the claims it dismissed. Rather, it recognized that the problem with Plaintiffs’ 

allegations was legal sufficiency, i.e., whether there is some insuperable legal barrier to relief. See, 

e.g., MTD Order at 2, 6–7, 15; see also, e.g., Residents Against Flooding v. Reinvestment Zone 

No. Seventeen, 260 F. Supp. 3d 738, 756 (S.D. Tex. 2017) (explaining that “[d]ismissal is 

appropriate when the plaintiff [either (i)] fails to allege enough facts to state a claim to relief that 

is plausible on its face” or (ii) where a complaint is based on a “meritless legal theory or a violation 

of a legal interest that does not exist”). 

On a related note, it is somewhat ironic that – in the midst of complaining about the Court’s 

articulation of the standard of review – Plaintiffs themselves ignore the Rule 12(b)(6) standards, 

pointing to all manner of new factual material from outside of the complaint. See, e.g., Mot. at 2–

3, 9, 13 n.8, 20. In doing so, Plaintiffs are selectively quoting or otherwise mischaracterizing 

snippets of the factual record on a number of hotly contested propositions.2 But even if Plaintiffs’ 

characterizations of these additional facts were accurate, “[i]n ruling on a Rule 12(b)(6), ‘courts 

must limit their inquiry to the facts stated in the complaint.’” Delhomme v. Caremark Rx Inc., 232 

F.R.D. 573, 577 (N.D. Tex. 2005) (quoting Lovelace v. Software Spectrum Inc., 78 F.3d 1015, 

1017 (5th Cir. 1996)). And, as explained below, even assuming the truth of everything Plaintiffs 

want to add, this Court’s order should still stand. 

 

2

 To provide just one example, Plaintiffs assert that United made the masking policy “very 

serious” to punish employees. Mot. 20. But that is flatly contradicted by testimony that United 

emphasized compliance due to safety concerns and TSA requirements. App. 6. At the same time, 

Plaintiffs ignore where discovery undermined their allegations. For example, Mr. Rains testified 

that the SAC allegations about his medical condition – which the Court noted in its MTD Order 

(at 11–12) – are incorrect. Mr. Rains does not, in fact, assert any “allergic reaction as a basis for 

[his] medical RAP” or ADA claims. App. 10–12. United will be addressing Plaintiffs’ factual 

mischaracterizations in more detail in its forthcoming Opposition to Plaintiffs’ Motion for Class 

Certification. 

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II. The Court Correctly Dismissed Plaintiffs’ Retaliation Claims. 

This Court held that Plaintiffs’ retaliation claims “attempt to fit a square peg into a round 

hole,” by “cry[ing] retaliation for United’s supposed failure to reasonably accommodate.” MTD 

Order 17. As to the facts, the Court emphasized that it was “undisputed that unvaccinated 

employees who did not seek an accommodation were terminated for failing to comply with 

United’s vaccine mandate.” Id. at 15. As to the law, the Court concluded that United’s “unpaid 

leave policy” was not “an adverse employment action” for purposes of Plaintiffs’ retaliation claim, 

because “[n]o reasonable worker would be deterred by United’s unpaid leave policy from seeking 

an accommodation if they knew the alternative was termination.” Id. Plaintiffs’ Motion does not 

(and cannot) dispute the factual premise, and its objections to the legal conclusion mischaracterize 

this Court’s decision and antiretaliation law. 

Plaintiffs principally assert that “[t]he Court did not apply th[e] test” that, for purposes of 

retaliation claims, an “adverse employment action” is one that “‘well might have dissuaded a 

reasonable worker’ from engaging in the protected conduct.” Mot. at 7–8 (quoting Burlington N. 

& Santa Fe Ry. Co. v. White, 548 U.S. 53, 66–68 (2006)). That is plainly false. This Court 

expressly articulated and applied that very test: “In the retaliation context, an adverse employment 

action is one that might dissuade a reasonable worker from engaging in a protected activity[.] . . . 

Thus, the question is whether United’s indefinite unpaid leave policy would have dissuaded a 

reasonable worker from seeking an accommodation, given that failure [to] get vaccinated or seek 

an accommodation would result in termination.” MTD Order at 14–15. Plaintiffs’ objection is 

that this Court paraphrased that standard as whether they were “‘treated materially worse’” because 

they requested an accommodation. Mot. at 8. But as they acknowledge on the previous page, 

Burlington Northern itself said it was adopting a “‘materially adverse’” standard, id. at 7 (quoting 

548 U.S. at 68), and “worse” is just a synonym for “adverse.” 

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Plaintiffs additionally insist that “the Supreme Court and the Fifth Circuit have already 

concluded that the threat of unpaid leave is itself sufficient to state a claim of retaliation.” Mot. at 

9. Again, not true. Indeed, Plaintiffs did not make this argument when opposing dismissal, see 

ECF No. 213 at 13–14, and for good reason: Neither of the cases they cite, see Mot. at 9, holds 

that unpaid leave satisfies the “materially adverse” retaliation standard when it is offered as an 

accommodation from termination for non-compliance with company policy. 

Burlington Northern merely held that a “suspension without pay” imposed as a penalty for 

“filing a discrimination complaint” about a hostile work environment “could well act as a 

deterrent,” precisely because the temporary loss of pay made the employee much worse off than 

if she had not filed the complaint and thus had retained her job and pay. 548 U.S. at 72–73. 

Moreover, in Brandon v. Sage Corp., 808 F.3d 266 (5th Cir. 2015), while the court “d[id] not 

reject the possibility that a realistic, drastic pay cut threat might deter someone from supporting a 

discrimination charge in certain circumstances,” it held that “no reasonable jury would find that 

to be the case [t]here,” because the threat was made “by someone outside [the employee’s] chain 

of command and who she knew had no final decision-making authority.” Id. at 271 (emphasis 

added). Plaintiffs’ retaliation claims are far weaker than the one rejected in Brandon: rather than 

threatening to penalize Plaintiffs for protected activity, United treated Plaintiffs better, not worse, 

because they requested accommodations. In short, as this Court correctly held, even if some 

employees viewed the unpaid-leave accommodation as “unreasonable,” both law and logic compel 

the conclusion that “reasonable employees would (and did) seek [that] accommodation to avoid 

termination.” MTD Order at 15–16.3

 

3

 As this Court recognized, the same rationale applies to Plaintiffs’ ancillary objections that 

the “accommodation process” was “unreasonable.” See Mot. at 8–9. Plaintiffs identify no way in 

which they were treated worse because of the accommodation process than the termination that 

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Lacking any argument under controlling precedent, Plaintiffs emphasize a non-binding 

decision by another district court. See Mot. at 1, 7, 9–10 (citing McNeill v. Tyson Fresh Meats, 

Inc., 2023 WL 8532408 (N.D. Tex. Dec. 8, 2023)). But McNeill is unpersuasive because it failed 

to grapple with the critical issue that this Court identified. The McNeill decision’s discussion of 

the “materially adverse” standard never explained how an unpaid-leave accommodation would 

dissuade a reasonable employee from seeking an accommodation when the alternative was 

termination. See id. at *5–6. To the contrary, the McNeill decision acknowledged that “[t]he most 

viable option for a religious objector . . . was to accept a complete reduction in pay and hope [the 

employer] rescinded the policy,” id. at *6, which confirms that reasonable employees seeking to 

avoid termination would not be dissuaded from requesting that accommodation, however 

unreasonable they may deem it. Simply put, the McNeill court conflated the question of whether 

unpaid leave “is not a reasonable accommodation” (the standard for a failure-to-accommodate 

claim) with the question of whether it is a materially “adverse employment action” compared to 

termination (the standard for a retaliation claim based on the allegedly protected activity of 

requesting an accommodation from termination). Id.4

 

they would have suffered if they had not requested an accommodation at all. So while some 

employees may have been dissatisfied with the accommodation process and result, as a matter of 

law, “[n]o reasonable worker would be deterred . . . from seeking accommodation” in these 

circumstances. MTD Order 15. 

4

 McNeill is also factually distinguishable. There, the accommodation provided was “up to 

one-year unpaid leave until either the policy was rescinded, the employee complied, or the leave 

period expired — culminating in termination.” 2023 WL 8532408, at *6 (emphasis added). 

Accordingly, the McNeill court viewed that accommodation as merely “delaying eventual 

termination.” Id. Whether or not that characterization was appropriate there, it certainly does not 

apply here. Rather than a delayed termination, United provided what Plaintiffs characterize as 

“indefinite” unpaid leave to accommodated employees until the pandemic subsided, see MTD 

Order 15; SAC ¶ 77. And, as it turned out, United employees returned to work after only about 

four months, SAC ¶ 43 n.1. Plaintiffs also ignore the further distinction that all United employees 

had the option to remain employed in alternative positions. 

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Relatedly, Plaintiffs try to relitigate their argument that they can “maintain a retaliation 

claim that relies on facts that also give rise to a failure-to-accommodate claim.” Mot. at 10. But 

they have no persuasive response to this Court’s explanation that treating the alleged 

unreasonableness of an accommodation as itself retaliatory “would erode the difference between 

a failure-to-accommodate claim and a retaliation claim.” MTD Order at 16. Plaintiffs contend 

that doing so would not “conflict” with the statutory scheme, Mot. at 12, but that is clearly wrong: 

their position would eviscerate the undue-hardship defense, which applies to failure-toaccommodate claims but not retaliation claims. Compare 42 U.S.C. § 2000e(j), and id.

§ 12112(b)(5), with id. § 2000e-3(a), and id. § 12203(a). Under Plaintiffs’ theory, even if 

providing a reasonable accommodation would impose an undue hardship on an employer—thus 

defeating a failure-to-accommodate claim—an employee could simply allege that the employer’s 

refusal to provide a desired accommodation was prohibited retaliation, on the rationale that the 

company’s announced decision to deny the accommodation, and the resulting threat of discipline 

for non-compliance with the company policy, “coerce[d] employees to get [in compliance] . . . 

rather than seek an accommodation.” Mot. at 8–9. As this Court recognized, “any arguably 

unreasonable accommodation could be said to ‘dissuade’ workers from seeking it,” but that does 

not establish adverse employment action for purposes of a retaliation claim. MTD Order at 16. 

Plaintiffs still cannot cite any authority in support of their flawed theory. They mostly 

invoke the same inapposite cases they unsuccessfully cited when opposing dismissal. Compare 

Mot. at 11–12, and ECF No. 213 at 12, with ECF No. 215 at 6 n.3. And the only new case they 

cite other than McNeill – namely, Lewis v. New York City Transit Auth., 12 F. Supp. 3d 418 

(E.D.N.Y. 2014) – says the exact opposite of what they assert. They say the Lewis court 

“concluded that the same reasons [a] transfer could not be deemed reasonable also rendered the 

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10 

transfer materially adverse for the retaliation claim.” Mot. at 11. But the transfer in Lewis was 

not an accommodation at all. As that court explained, “secular bus drivers who violated the Transit 

Authority’s headgear policy – such as drivers who wore FDNY hats in solidarity with the fire 

department after 9/11 – were not disciplined.” 12 F. Supp. 3d at 451. Thus, transferring only a 

bus driver who objected to the policy on religious grounds was not accommodating her by treating 

her better, but rather discriminating against her by treating her worse. See id. Here, by contrast, 

“it is undisputed that unvaccinated employees who did not seek an accommodation were 

terminated for failing to comply with United’s vaccine mandate.” MTD Order at 15. 

In sum, Plaintiffs still cannot “fit a square peg into a round hole.” Id. at 17. They have 

provided this Court with no reason to reconsider its well-reasoned refusal to let them “cry 

retaliation for United’s supposed failure to reasonably accommodate.” Id.

III. The Court Correctly Ruled That Castillo and Hamilton Did Not Suffer an Adverse 

Employment Action. 

Based on a careful analysis of the Hamilton and Harrison precedents, this Court recognized 

that the Fifth Circuit has adopted a de minimis or materiality standard for evaluating an actionable 

adverse employment action. MTD Order at 4–6. That standard ensures that district courts do not 

“become ‘super-personnel departments’” and avoids expanding Title VII “into the sphere of [ ] 

workplace trifles.” Id. at 7. Then, “[h]aving clarified the applicable standard,” (id. at 6), the Court 

held that neither Ms. Hamilton’s and Mr. Castillo’s objections to (i) their experiences with 

United’s masking and testing protocol, nor (ii) to an accommodation they never received (i.e., 

unpaid leave) “clear[ed] the de minimis threshold” (id. at 7).5 Each of Plaintiffs’ arguments for 

revisiting these rulings fails. 

 

5

 As described below, infra at IV.B., the Court also correctly held that Mr. Castillo’s claims 

fail for the independent reason that they are time barred. 

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11 

First, Plaintiffs argue that the Court required Plaintiffs to plead facts sufficient to prove a 

prima facie case but that need not be alleged to survive a 12(b)(6) motion. Mot. at 15–16. As the 

very case they cite explains, however, Plaintiffs “must plead sufficient facts on all of the ultimate 

elements of [the] claim.” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 766 (5th Cir. 2019) 

(citation and alteration omitted). And Fifth Circuit law, including Cicalese, is clear that one of 

those “ultimate elements a [Title VII] plaintiff must plead” is “an adverse employment action.” 

Id. at 767. Indeed, both Hamilton and Harrison arose in the context of a motion challenging the 

pleadings, and both adhered to the settled view that a failure to allege an actionable adverse action 

can be raised in that context. See Hamilton v. Dall. Cnty., 79 F.4th 494, 506 (5th Cir. 2023); 

Harrison v. Brookhaven Sch. Dist., 82 F.4th 427, 432 (5th Cir. 2023). Therefore, the Court 

properly asked whether Ms. Hamilton and Mr. Castillo had sufficiently alleged this element. 

Second, Plaintiffs suggest that this Court misunderstood the post-Hamilton adverse action 

requirement. Mot. at 15–16. But as this Court has now explained in multiple cases, “Hamilton

brought the Fifth Circuit in line with Title VII’s text and the approach taken by other circuits” and 

that “this Court will not expand the Hamilton standard into the sphere of . . . workplace trifles, 

absent clear direction from the Fifth Circuit.” MTD Order at 7.

6

 That is an eminently sensible 

reading, which is further supported by Harrison’s reasoning that the “more than de minimis” 

standard performs a similar function to the “materiality” rule and prevents transforming “Title VII 

into a general civility code for the American workplace.” 82 F.4th at 431.7

 

6

 See also, e.g., Dixon v. Garland, 2024 WL 150509, at *4–5 (N.D. Tex. Jan. 12, 2024) 

(addressing the post-Hamilton standard); Lindsey v. American Airlines, 2023 WL 5807015, at *2 

(N.D. Tex. Sept. 7, 2023) (same). 

7

 There is no basis to replace this understanding of the materiality/de minimis standard with 

a dictionary definition of “very small or trifling” from Groff v. DeJoy, 600 U.S. 447 (2023) 

(Mot. at 4, 16–17), which was addressing a different issue. Indeed, Groff cautioned against 

“read[ing] [words] in isolation.” Id. at 465. 

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12 

Third, Plaintiffs are also incorrect that the Court “overlooked” certain allegations in 

applying the post-Hamilton standard. Mot. at 18–19. Plaintiffs point to allegations about lack of 

“training and oxygenation breaks” and to Mr. Castillo’s alleged inability “to communicate with 

colleagues.” Id. But those allegations appear on the same pages of the complaint that the Court 

cited in describing Plaintiffs’ allegations, see MTD Order at 6–7 (citing ECF No. 156 at 27, 29). 

Although this Court did not quote each one, that is presumably because they are all just as trivial 

as the allegations that the Court rejected as “not clear[ing] the de minimis threshold,” such as 

“making it hard . . . to breathe” and being “needlessly banished to eat outdoors.” Id.

Plaintiffs also emphasize their allegations about the “context,” which they describe as an 

accommodations process designed to “harass[]” and “coerc[e]” employees. Mot. at 19 (i.e.,

alleging that United “subjected religious employees to harassing questions about their faith . . . 

then announced . . . that all accommodated employees would be put on indefinite, unpaid leave”). 

Those allegations are doubly immaterial. First, they are irrelevant to Ms. Hamilton and 

Mr. Castillo, as neither one alleges being among those who were asked any offending questions, 

SAC ¶¶ 106–120, 121–133, and because, as the SAC admits, both of their exemption requests were 

approved, id. ¶¶ 17, 127, and neither of them experienced unpaid leave, id. ¶ 142. Second, they 

are irrelevant more generally because Plaintiffs’ SAC does not include a hostile-work-environment 

claim. Allegations about the “context” of the accommodation process have no bearing on their 

failure-to-accommodate claim and whether the accommodations they actually received can be 

construed as adverse action.8

 

8

 Plaintiffs try to augment their “contextual” allegations by referring to the discovery record 

(Mot. at 20), referring to emails about whether there should or could be “automatic[] terminat[ion]” 

for violating the masking-and-testing protocol. Even if it were proper to consider these new 

allegations on a motion to dismiss, see supra at 5, Ms. Hamilton and Mr. Castillo never allege that 

they faced any threat of termination for non-compliance. 

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Fourth, Plaintiffs “attempt[] to relitigate . . . [the] argument[]” (ECF No. 115 at 1) about 

whether the unrealized “threat” of unpaid leave constitutes an adverse action. Compare Mot. at 

17–18, with MTD Order at 8 (explaining that “Hamilton and Castillo were not fired, their 

compensation was not changed, and United’s unpaid leave policy did not affect these Plaintiffs’ 

terms, conditions, or privileges of employment”). Here again, Plaintiffs’ only argument is that this 

Court’s conclusion conflicts with the McNeill decision. Mot. at 17–18. 

That is not so. McNeill did not involve an employer who tentatively announced a policy

that it never actually implemented vis-à-vis the employee complaining about the policy. Rather, 

in McNeill, the employer subjected the employee to an immediate choice: termination, unpaid 

leave followed by termination, or vaccination. 2023 WL 8532408, at *6. The employee responded 

to these options by choosing to get vaccinated. Id. at *2. Here, by contrast, United tentatively 

announced that the initial accommodation for non-customer facing employees would be temporary 

unpaid leave, while making clear that it was working on developing alternative accommodations. 

Then, before Ms. Hamilton and Mr. Castillo would have been placed on unpaid leave, they – along 

with all other non-customer facing employees – were “allowed to work with mask-wearing and 

testing protocols.” SAC ¶ 9; SAC p. 21 n.2; ¶ 142. See also Sambrano v. United Airlines, Inc., 

2022 WL 486610, at *2 (5th Cir. Feb. 17, 2022) (distinguishing between flight crew facing unpaid 

leave and Ms. Hamilton and Mr. Castillo who “continue[d] to work and be paid without receiving 

a COVID-19 vaccine”). As this Court recognized, if an employer tentatively announces a policy 

but then reconsiders or offers something different, the employees have not actually suffered any 

adverse employment action. MTD Order at 8.9

 

 

9

 That is especially so here, given that, unlike the plaintiff in McNeill, neither Ms. Hamilton 

nor Mr. Castillo ever chose to get vaccinated. Even if they were “coerced,” that is “exogenous” 

harm and thus not remediable under Title VII. Sambrano, 2022 WL 486610 at *7. 

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Finally, Plaintiffs argue that the Court’s opinion “is internally inconsistent regarding 

Hamilton’s and Castillo’s failure-to-accommodate claims.” Mot. at 20. Again, this is a pedantic 

quibble; the opinion needs no clarification. It is obvious that reasonableness and adverse action 

are separate elements of a failure-to-accommodate claim. See, e.g., Tagore v. United States, 735 

F.3d 324, 329 (5th Cir. 2013). This Court held that whether masking and testing is a “reasonable” 

accommodation should not be resolved at the motion-to-dismiss stage, MTD Order at 9, but also 

found that Plaintiffs’ objections to masking and testing did not satisfy the different legal standard 

for the adverse-action element. Id. at 6–8.10 In any event, it is well-settled that a motion to 

reconsider must address “manifest errors,” not mere alleged inconsistencies in the wording of a 

court’s decision. Jennings, 11 F.4th at 345. 

IV. The Court Correctly Ruled That Castillo’s, Medlin’s and Rains’ Claims Are TimeBarred. 

In ruling on timeliness, the Court correctly described the applicable standards: A charge 

is timely if it is filed within 300 days of the employee’s notice of the complained-of employment 

practice. MTD Order at 17; see 42 U.S.C. § 2000e-5(e)(1); 42 U.S.C. § 12117(a). A filing must 

both satisfy the regulatory requirements of a charge and “it must be reasonably construed as a 

request for the agency to take remedial action to protect the employee’s rights or otherwise settle 

a dispute between the employer and the employee.” Fed. Exp. Corp. v. Holowecki, 552 U.S. 389, 

402 (2008). The Court applied these standards to conclude that Medlin’s, Castillo’s and Rains’ 

reasonable accommodation claims are untimely. MTD Order at 17–26. In arguing to the contrary, 

Plaintiffs misconstrue controlling precedent and focus on legally irrelevant facts. 

 

10 If the Court did revive Ms. Hamilton’s or Mr. Castillo’s claims on the employee-specific 

factual grounds that Plaintiffs urge, it would only further cement the conclusion that there are 

individualized issues that preclude certification as a class action. See Mot. at 17 (arguing that 

whether adverse action exists “depends on the specific allegations”). 

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A. Ms. Medlin’s Failure-To-Accommodate Claim Is Untimely. 

Plaintiffs tacitly concede that the Court was correct when it found that “United’s denial of 

[Medlin’s] accommodation request in September 2021 occurred well before the 300-day window 

of her EEOC charge.” Mot. at 21 (alterations omitted) (quoting MTD Order at 23). Nevertheless, 

Plaintiffs argue the Court misapplied the law to these facts because Ms. Medlin’s March 2022 

“termination was inextricably linked” to her earlier accommodation request. Mot. at 21. Plaintiffs 

raised this argument in their opposition brief (ECF No. 213 at 19 n.9; ECF No. 227 at 10 n.5), and 

the Court expressly addressed and rejected it. MTD Order at 22–23 (“United’s denial of Medlin’s 

accommodation request was not a continuing violation, it was a discrete act.”). 

Plaintiffs also try two variations on their previous arguments, each of which is foreclosed 

by precedent. First, Plaintiffs argue that the statute of limitations for Ms. Medlin’s claim did not 

begin to run until her employment was impacted by the denial decision (i.e. when she was 

terminated). Mot. at 21. But under Supreme Court precedent, the charge-filing period begins 

when an employee receives notice that the employer has made the challenged decision, not when 

the effects of that decision are felt. Delaware State Coll. v. Ricks, 449 U.S. 250, 256–59 (1980) 

(Title VII claim accrued “at the time the tenure decision was made and communicated,” even 

though “the effects of the denial of tenure–the eventual loss of a teaching position–did not occur 

until later”); accord Simotas v. Kelsey-Seybold, 211 F. App’x 273, 275 (5th Cir. 2006) (“The 

relevant date for determining the beginning date for the limitations period is the day the employee 

learns that the challenged decision has been made, not when she feels the effects of that decision.”). 

Therefore, this Court was correct when it found that the September 2021 denial of Ms. Medlin’s 

accommodation request triggered the 300-day charge deadline, “[e]ven though Medlin did not 

require an accommodation until she returned to work.” MTD Order at 23. 

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Second, Plaintiffs claim the Court erred in relying on Henson v. Bell Helicopter Textron, 

Inc., 128 F. App’x 387, 391 (5th Cir. 2005), for its conclusion that “an employer’s ‘failure to 

provide accommodations’ is a discrete act that does not qualify under the continuing violation 

doctrine,” MTD Order at 22. Mot. at 22. As an initial matter, Plaintiffs seek to distinguish Henson

by noting that Jurach v. Safety Vision, LLC, 72 F. Supp. 3d 698 (S.D. Tex. 2014), discussed Henson

and observed that it is possible for the continuing violation doctrine to apply to a failure-toaccommodate lawsuit. What Plaintiffs leave out, however, is that the Jurach court agreed that 

“denials of accommodation requests [are] discrete events rather than continuing violations.” Id.

at 707. In Jurach – unlike in Ms. Medlin’s case or in Henson – none of the requests for an 

accommodation “were explicitly denied in the sort of discrete and salient event that should put an 

employee on notice that a cause of action has accrued.” Id. (citation omitted). See also SAC ¶ 

176 (admitting Ms. Medlin knew of the denial while on maternity leave). Instead, the defendant 

in Jurach had granted the accommodation requests. Thus, Jurach stands for the propositions (fully 

consistent with dismissing Ms. Medlin’s claims) that an employer’s prior grant of an employee’s 

accommodation requests does not begin the charge-filing period but an employer’s subsequent 

“explicit denial” of a request does start the clock. Id. at 707. 

Plaintiffs further argue that the rule articulated in Henson does not apply here because 

United supposedly “directed employees to address accommodation requests upon return from 

leave.” Mot. at 22.11 Even if that were true, it would be a legally immaterial distinction. A discrete 

act does not become a continuing violation merely because the employer provides an opportunity 

for internal reconsideration. To the contrary, the Supreme Court has held “that the pendency of a 

 

11 This factual assertion finds no support in Plaintiffs’ complaint, which only alleges that Ms. 

Medlin “assumed” she could address the denial of her accommodation when she returned from 

maternity leave. SAC ¶ 176. 

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grievance, or some other method of collateral review of an employment decision, does not toll the 

running of the limitations periods.” Ricks, 449 U.S. at 261. In other words, the fact that an 

employee can or did challenge the complained-of decision does not impact the statute of 

limitations for filing a charge. This is because “[m]ere requests to reconsider . . . cannot extend 

the limitations periods applicable to the civil rights laws.” Id. at 261 n.15. Therefore, “an employer 

standing by a prior denial after an employee requests reconsideration neither constitutes a discrete 

act nor extends the filing period.” Das v. Am. Airlines, Inc., 2020 WL 364264, at *3 (N.D. Tex. 

Jan. 21, 2020). Accordingly, Plaintiffs have identified no plausible error in the Court’s decision 

dismissing Ms. Medlin’s failure-to-accommodate claim as untimely. 

B. Mr. Castillo’s Claims Are Untimely. 

Plaintiffs’ Motion with respect to Mr. Castillo’s untimely charge largely relitigates points 

from their supplemental brief. See MTD Order at 25–26. Plaintiffs’ various repackaged efforts to 

overcome the Holowecki standard (Mot. at 23–25) fall short. 

First, Plaintiffs argue that the Court “overlooked Holowecki’s goal of ensuring that filed 

materials express a desire for the administrative machinery to be set into motion.” Mot. at 23–24. 

To the contrary, this Court correctly articulated the Supreme Court’s goal: to “put in place a 

‘mechanism to separate information requests from enforcement requests.’” MTD Order at 21 

(quoting Holowecki, 552 U.S. at 401). A key aspect of that test from Holowecki is that the EEOC 

filing “must be reasonably construed as a request for the agency to take remedial action.” Id. See 

also ECF No. 220; ECF No. 225 at 2–6. Thus, far from “overlook[ing]” anything, the Court simply 

found that the complaint and judicially noticeable materials did not satisfy Mr. Castillo’s 

obligation to show that his pre-charge filings must be reasonably construed as a request for action 

from the EEOC. MTD Order at 24–26. 

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Second, Plaintiffs argue that because the EEOC “prepared a charge for [Castillo] to sign,” 

this establishes that Mr. Castillo’s pre-charge filings met the Holowecki test. Mot. at 24. The 

Court already correctly rejected this argument, citing controlling Fifth Circuit precedent. MTD 

Order at 25 (“[T]he EEOC’s characterization of [a pre-charge filing] is not dispositive. What 

constitutes a charge is determined by objective criteria.” Id. (quoting EEOC v. Vantage Energy 

Servs., Inc., 954 F.3d 749, 755 (5th Cir. 2020))). Plaintiffs’ Motion does not and cannot explain 

how this Court erred in following binding precedent that squarely disposes of their argument. 

Third, Plaintiffs argue that the Holowecki standard does not apply and “it does not matter 

what Castillo’s inquiry said,” because the EEOC regarded Mr. Castillo’s pre-charge filings as a 

“charge.” Mot. at 25 n.13. But this merely repackages Plaintiffs’ incorrect argument that the 

Holowecki test is not objective, and that the Court should defer to the EEOC’s interpretation of an 

employee’s pre-charge filings when deciding if Title VII’s jurisdictional prerequisites are met. As 

this Court recognized, Plaintiffs’ position is contrary to law. MTD Order at 25; see also Cooper 

v. Dall. Police Ass'n, 609 F. App’x 213, 214 (5th Cir. 2015) (courts should “not defer to the EEOC” 

on whether plaintiff complied with Title VII’s pre-suit requirements). 

In any event, the EEOC did not treat Mr. Castillo’s pre-charge submissions as a charge. If 

the EEOC had done so, it would have provided notice to United as required by Title VII, 42 U.S.C. 

§ 2000e-5(e)(1), and its own regulations, 29 C.F.R. § 1601.14. The EEOC did not provide such 

notice until after it received Mr. Castillo’s actual charge, many months later. See ECF No. 226, 

Def.’s App. at 045 (Notice of Castillo Charge uploaded 9/20/2022). There is also no indication 

that the EEOC investigated Mr. Castillo’s pre-charge filing, issued a determination about his 

allegations, or attempted conciliation, all of which are acts that Title VII requires the agency to 

perform when it receives a charge. See 42 U.S.C. § 2000e-5(b). 

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C. Mr. Rains’ Claims Are Untimely. 

The Court also dismissed Mr. Rains’ claims as untimely. MTD Order at 23–24. Plaintiffs 

raise two points in challenging that conclusion, neither of which has merit. 

First, Plaintiffs assert that the September 2021 form Mr. Rains sent to the Texas Workforce 

Commission (“TWC”) was “sufficient to trigger all administrative review, both state and federal,” 

in light of the TWC and EEOC’s worksharing agreement. Mot. at 23. However, under Holowecki, 

not only must there be a request for remedial action, but the filing at issue must also satisfy the 

applicable regulatory requirements for a charge. Holowecki, 552 U.S. at 402. Here, the Court 

properly concluded that Mr. Rains’ unsuccessful filing with the TWC did not “satisfy the 

requirements of a pre-charge filing with the EEOC.” MTD Order at 24.12 Among other things, 

because it was unverified (ECF 228-4), Mr. Rains’ submission does not constitute a charge that 

the TWC would dual file under its regulations.13 See Tex. Labor Code § 21.201 (“The complaint 

must be in writing and made under oath.”). Mr. Rains’ TWC form did not meet the state agency’s 

requirements for a “charge,” and does not otherwise indicate Mr. Rains’ intent to have the form 

dual-filed with the EEOC. Indeed, the TWC expressly informed Mr. Rains it was not treating his 

filing as a charge, both through the clear disclaimer printed on Mr. Rains’ form and again when 

the TWC “dismissed” his inquiry and confirmed that the agency did not dual-file Rains’ pre-charge 

filing with the EEOC. ECF No. 228-4 at 4 (“Submitting this Complaint Form DOES NOT 

represent filing a formal Charge of Discrimination.”); ECF No. 228-6 at 2. Thus, Mr. Rains’ TWC 

 

12 The Court assumed, for purposes of this discussion, that Mr. Rains’ TWC submission “may 

[include] a specific request for remedial action” under Holowecki. MTD Order at 23–24. 

13 Even with the worksharing agreement between the TWC and the EEOC, the employee still 

has the burden to establish that he filed a timely “charge.” See Connor v. Harris Cnty., 1992 WL 

337420, at *5 (S.D. Tex. Sept. 17, 1992); see also EEOC, Fair Employment Practices Agencies 

(FEPAs) and Dual Filing, available at https://www.eeoc.gov/fair-employment-practices-agenciesfepas-and-dual-filing (state agency will only dual-file “charges” with EEOC). 

Case 4:21-cv-01074-P Document 244 Filed 02/06/24 Page 24 of 29 PageID 9322
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form does not qualify as a “charge.” See Ojedis v. JetBlue Airways Corp., 2008 WL 961884, at 

*5 (W.D. Tex. Apr. 9, 2008), report and rec. adopted, 2008 WL 11417026 (W.D. Tex. Sept. 17, 

2008) (deeming unverified submission with TWC not to be a “charge” and explaining that “unlike 

Holowecki, the TWC did not treat Plaintiff’s intake questionnaire as a charge, and in fact informed 

Plaintiff that it would not be preparing a charge of discrimination on his behalf”). 

Moreover, relation back cannot enable Mr. Rains to cure his failure to file a proper charge 

with the TWC. Even under the EEOC’s charge requirements, Mr. Rains’ Texas pre-charge filing 

still does not constitute a “charge.” While a verification defect may be cured in some 

circumstances, the TWC dismissed Mr. Rains’ pre-charge filing and never sent it to the EEOC. 

See ECF No. 228-6 at 2. Because that happened, Mr. Rains’ later-filed EEOC charge cannot 

“relate back” to the dismissed TWC form. See, e.g., Univ. of Tex. at El Paso v. Isaac, 568 S.W.3d 

175, 186, n.10 (Tex. App. 2018) (“[A]n amendment filed after the file has been administratively 

closed by the EEOC would be treated as a new charge.”); Gonzales v. Pan Am. Labs., L.L.C., 2017 

WL 4758672, at *9 (N.D. Tex. Oct. 20, 2017) (“Because Plaintiff’s Intake Questionnaire and 

narrative do not qualify as a charge, there would be nothing to which a newly verified charge by 

Plaintiff would relate back.”). In short, Mr. Rains’ defective TWC filing was not timely and he 

did not adequately exhaust his federal claims. 

Second, Mr. Rains argues that being placed on unpaid leave “was not a discrete act of 

discrimination but a daily, ongoing discriminatory process.” Mot. at 23. Despite Mr. Rains’ 

emphasis on the allegedly “coercive” nature of unpaid leave, however, this argument fails for the 

same reasons it does for Ms. Medlin—a failure-to-accommodate claim accrues when the employee 

receives notice of the employer’s adverse accommodation decision, not each time later adverse 

effects of that decision occur. See supra at IV.A.

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21 

V. Further Amendments to the Pleadings Would be Futile and Inequitable. 

Finally, Plaintiffs contend that, even if the Court were right to dismiss the claims at issue, 

it was wrong to dismiss with prejudice; and they thus seek leave to amend their complaint yet 

again. Mot. at 2, 6, 25. This fallback position fails too. 

First, when there is a legal obstacle to a claim, a dismissal with prejudice is warranted. See 

Taubenfeld v. Hotels.com, 385 F. Supp. 2d 587, 592 (N.D. Tex. 2004) (“A dismissal with prejudice 

is appropriate when amending a complaint would be futile.”). Here, for all the reasons discussed 

above, Plaintiffs cannot resuscitate their claims with new or additional factual allegations because 

(a) they were all treated better rather than worse because they requested accommodations; 

(b) Ms. Hamilton and Mr. Castillo suffered nothing more than de minimis burdens from their 

masking-and-testing accommodations; and (c) the undisputed factual record reflects that Messrs. 

Castillo and Rains and Ms. Medlin failed to timely exhaust their administrative remedies. 

Second, Plaintiffs failed to submit a proposed amended complaint either during the motion 

to dismiss briefing or with their reconsideration motion. That is fatal, as a plaintiff’s “failure to 

provide and attach a proposed amended pleading alone [is] sufficient reason to deny [a] motion 

for leave to amend.” Greer, 2022 WL 394762, at *7. Likewise, Plaintiffs, in opposing United’s 

motion to dismiss, never sought an opportunity to replead their allegations or otherwise requested 

dismissal without prejudice. Only now, having lost, do they want to do so. 

Third, undue delay and prejudice to United justify rejection of any amendment at this stage 

of proceedings. Simmons, 732 F.3d at 478. Plaintiffs have already amended their complaint twice, 

and granting them “leave to retroactively bolster [their] allegations with a new complaint” at this 

late stage “would necessarily result in additional delay.” In re Gulf States Long Term Acute Care 

of Covington, L.L.C., 2014 WL 107870, at *3 (E.D. La. Jan. 9, 2014). That is especially so given 

this Court’s “deep[ ] concern[] about the age of this case.” ECF No. 211 & n.1. 

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22 

Allowing another amendment now would be especially problematic for purposes of the 

ongoing class certification briefing. United’s opposition to class certification is due in 3 days. Its 

opposition does not, of course, address the dismissed Plaintiffs or the dismissed claims. Reviving 

the now-dismissed portions of the case prejudices United’s ability to respond to the class 

certification motion and would require further extension of the deadlines or an additional round of 

class briefing. This Court has already granted numerous extensions, and stated that no further 

extensions would be granted absent extraordinary circumstances. ECF No. 233 & n.1. Plaintiffs’ 

desire to try again to rehabilitate their failed claims is hardly an “extraordinary circumstance.” Nor 

should United be forced to absorb the additional cost and delay of another round of class 

certification briefing. As this Court has indicated, the time has come to resolve this case one way 

or the other, and timely completion of the class certification briefing should go a long way toward 

accomplishing that goal. 

CONCLUSION 

For the foregoing reasons, United respectfully requests that the Court deny Plaintiffs’ 

motion for reconsideration in all respects. 

Case 4:21-cv-01074-P Document 244 Filed 02/06/24 Page 27 of 29 PageID 9325
23 

Dated: February 6, 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 60601 

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. 

Case 4:21-cv-01074-P Document 244 Filed 02/06/24 Page 28 of 29 PageID 9326
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CERTIFICATE OF SERVICE 

I hereby certify that, on February 6, 2024, I electronically filed the foregoing with the Clerk 

of the Court using the CM/ECF system, which will send notification to all counsel of record. 

 /s/ Russell D. Cawyer 

Russell D. Cawyer 

Case 4:21-cv-01074-P Document 244 Filed 02/06/24 Page 29 of 29 PageID 9327