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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,

Plaintiffs, 

v.

UNITED AIRLINES, INC.,

Defendant.

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Civil Action No. 

4:21-CV-01074-P

DEFENDANT’S MOTION TO CLARIFY OR MODIFY THE

TEMPORARY RESTRAINING ORDER AND MEMORANDUM IN SUPPORT

Defendant United Airlines, Inc. (“United”) hereby requests that the Court clarify and/or 

modify its October 12, 2021 Temporary Restraining Order (“TRO”), ECF No. 66, in two 

respects. First, the Court should clarify that those accommodated non-customer facing 

employees who, as of October 18, 2021, are entitled to remain at work under a newly-created 

testing program may be placed on unpaid leave if they refuse to consent to testing. Second, the 

Court should clarify that its Order was intended to preserve the status quo and not to require 

United to reopen the Request for Accommodation Process (“RAP”) for employees who had 

failed, prior to this litigation, to ever request an accommodation and are now, as a result, in the 

midst of disciplinary termination proceedings. 

United has conferred with counsel for plaintiffs as to both of these issues. On the first 

question regarding employees who reject testing, plaintiffs stated that they “believe the testing 

accommodation is reasonable,” but declined to take a position on how the TRO should be 

applied when employees refuse to test. On the second issue, plaintiffs informed United that they 

oppose this Motion. 

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ARGUMENT

 The October 12 Order states that it is intended “to avoid risking irreparable injury and to 

maintain the status quo in this case pending the Court’s hearing and resolution of plaintiffs’ 

Motion for Preliminary Injunction.” ECF No. 66 at 1 (emphasis added). The Order includes two 

operative provisions: 

“It is, therefore, ORDERED that, for the duration of this Temporary Restraining 

Order, United Airlines, Inc. is TEMPORARILY RESTRAINED and ENJOINED 

from placing any employee on unpaid leave if that employee was granted either a 

religious or medical exemption from United Airlines, Inc.’s COVID-19 vaccine 

mandate.”

“It is further ORDERED that United Airlines, Inc. is TEMPORARILY 

RESTRAINED and ENJOINED from denying any requests for religious or 

medical accommodations from United Airlines, Inc.’s COVID-19 vaccine 

mandate due to timeliness (i.e., because the requests were submitted after the 

August 31, 2021 deadline).” 

Id. at 2. The Court indicated that it was entering this Order to extend, in effect, the stipulated 

agreement between the parties that was read into the record on September 24, 2021. Id. at 1-2.

A. Unpaid Leave for Employees Who Refuse Testing Accommodation

Since the Order was entered, two issues have arisen. First, on October 12, 2021, United 

announced that it would, as of October 18, implement a new testing and masking program for 

certain accommodated employees who work in non-customer facing positions (such as “below 

the wing” ramp jobs). App. 1 ¶ 2 (Second Supplemental Declaration of Kirk Limacher). 

Employees with an approved RAP will be required to provide a negative COVID test result 

twice a week and, with limited exceptions, wear a N95 mask at all times. See ECF No. 41 at 18; 

see also App. 1 ¶ 2. Those who comply are not required to remain out of the workplace on 

unpaid leave. Id. However, since this new accommodation was announced, some 

accommodated employees have indicated that they will refuse to submit test results. Id. 2 ¶ 3. In 

addition, some employees have already begun violating the mask policy. Id. 

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Under ordinary circumstances, United would place accommodated employees who refuse 

to comply with the airline’s new testing and masking rules on unpaid leave. Id. 1 ¶ 2. And 

because this issue arose after the Court issued the TRO, there is no reason to think that the Court 

intended to bar United from taking such action against employees who refuse to comply with 

indisputably reasonable alternative accommodations. However, because the language of the 

TRO is quite broad, it is unclear if United currently has any recourse with respect to those 

individuals. Hence, United asks the Court to clarify or modify the language of the TRO to 

address this development. The proposed revision would states as follows (proposed addition in 

bold italics):

“It is, therefore, ORDERED that, for the duration of this Temporary Restraining 

Order, United Airlines, Inc. is TEMPORARILY RESTRAINED and ENJOINED 

from placing any employee on unpaid leave if that employee was granted either a 

religious or medical exemption from United Airlines, Inc.’s COVID-19 vaccine 

mandate unless such employee was offered and refused the option of remaining 

at work subject to masking and COVID-19 testing requirements.”

This would maintain the status quo for (1) all employees not offered an alternative 

accommodation and (2) all employees complying with United’s new testing/masking protocols. 

B. Newly Filed Accommodation Requests

As discussed at the recent hearing, virtually all United employees either chose to be 

vaccinated or sought and were granted an accommodation. App. 2 ¶ 4. However, approximately 

200 employees refused to pursue either option. Id. 2 ¶ 5. They were not subject to the parties’ 

stipulated agreement of September 24, which only covered persons who had submitted an 

accommodation request “on or before September 23, 2021.” Id. As a result, since late 

September, United has – in accordance with its collectively bargained disciplinary rules – been 

in the process of terminating those individuals. Id. 2 ¶ 6. As of earlier this week, those 

disciplinary processes were nearing a conclusion. Id. 

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However, once the TRO was entered, a number of those individuals suddenly announced 

that they would be filing for RAPs. Id. 2 ¶ 7. They are pointing to the second operative 

paragraph of the Court’s Order, which prohibits United from “denying any requests for religious 

or medical accommodations . . . due to timeliness.” Id.; ECF No. 66 at 2. They claim that this 

language means that United is obligated to re-open the accommodation process and consider new 

requests from employees who never filed before. Id.

The Court should clarify that its TRO was not intended to alter the status quo by 

reopening the accommodation process.1 Rather, as the Court expressly stated, the intent was to 

“maintain” the status quo, which means that the Order should cover individuals like named 

plaintiff David Castillo, who had submitted an accommodation – albeit late – prior to September 

23, 2021. Requests that are coming in now – only after the TRO was entered – are all from 

individuals who are taking advantage of what they see as an opportunity to delay their pending 

terminations. Indeed, by definition, those individuals were not even members of the putative 

class as of the date this case was filed.

To address this, the Court should clarify the scope of the second operative paragraph of 

the TRO by adding the following (proposed addition in bold italics): 

“It is further ORDERED that United Airlines, Inc. is TEMPORARILY 

RESTRAINED and ENJOINED from denying any requests made on or before 

September 23, 2021, for religious or medical accommodations from United 

Airlines, Inc.’s COVID-19 vaccine mandate due to timeliness (i.e., because the 

requests were submitted after the August 31, 2021 deadline).” 

Clarifying the Order along these lines will make the TRO consistent with the terms of the 

stipulated agreement between the parties.

 1 Ordering United to reopen the RAP process would, in effect, convert the TRO from a prohibitory 

injunction to a disfavored “mandatory” injunction, i.e., an injunction that requires a party to take action beyond just 

maintaining the status quo. See, e.g., Radius Bank v. Stafford Transp. of La., Inc., 2020 WL 1288904, at *2 (N.D. 

Tex. Mar. 18, 2020); Martinez v. Mathews, 544 F.2d 1233, 1234 (5th Cir. 1976). 

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Dated: October 17, 2021 Respectfully submitted,

/s/ Jordan M. Matthews

Jordan M. Matthews

IL Bar No. 6300503

JONES DAY

77 W. Wacker Drive, Suite 3500

Chicago, Illinois 60601

Telephone: (312) 782-3939

Facsimile: (312) 782-8585

Email: jmatthews@jonesday.com

Donald J. Munro

D.C. Bar No. 453600

JONES DAY

51 Louisiana Avenue, NW

Washington, DC 20001

Telephone: (202) 879-3939

Facsimile: (202) 626-1700

Email: dmunro@jonesday.com

Alexander V. Maugeri

NY Bar No. 5062666

JONES DAY

250 Vesey Street

New York, NY 10281-1047

Telephone: (212) 326-3880

Facsimile: (212) 755-7306

Email: amaugeri@jonesday.com

Russell D. Cawyer

State Bar No. 00793482

KELLY HART & HALLMAN LLP

201 Main St., Ste. 2500

Fort Worth, Texas 76102

(817) 878-3562 (telephone)

(817) 335-2820 (facsimile)

Email: russell.cawyer@kellyhart.com

ATTORNEYS FOR DEFENDANT

UNITED AIRLINES, INC.

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CERTIFICATE OF SERVICE

On October 17, 2021, I electronically submitted the foregoing document with the clerk of 

court for the U.S. District Court, Northern District of Texas, using the electronic case filing 

system of the court. I hereby certify that I have served all counsel and/or pro se parties of record 

electronically or by another manner authorized by Federal Rule of Civil Procedure 5(b)(2).

/s/ Jordan M. Matthews

Jordan M. Matthews

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CERTIFICATE OF CONFERENCE

On October 15, 2021, Donald J. Munro, counsel for United, conferred with Robert C. 

Wiegand, counsel for plaintiffs, regarding the relief sought in the foregoing motion. The parties 

could not reach agreement because plaintiffs are opposed to the relief sought. Accordingly, the 

foregoing is presented to the Court as opposed. 

/s/ Jordan M. Matthews

Jordan M. Matthews

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