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.

MEMORANDUM IN SUPPORT OF MOTION FOR 

TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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TABLE OF CONTENTS

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

STANDARD OF REVIEW............................................................................................................ 6

ARGUMENT.................................................................................................................................. 6

I. EEOC Review is No Obstacle Here to Preliminary Injunctive Relief................................ 6

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

Ongoing Violation of Federal Law..................................................................................... 9

A. Plaintiffs are likely to succeed on the merits of their Title VII claims................... 9

B. Plaintiffs are likely to succeed on the merits of their ADA claims. ..................... 16

C. Without preliminary injunctive relief, Plaintiffs will suffer irreparable injury. ... 18

D. Plaintiffs’ injury outweighs any potential hardship to United.............................. 21

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

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

TABLE OF AUTHORITIES

Cases

ADT v. Capital Connect, 

145 F. Supp. 3d 671 (N.D. Tex. 2015) ............................................................................... 18, 20

Am. Postal Workers Union v. Postmaster Gen., 

781 F.2d 772 (9th Cir. 1986) ...................................................................................................... 9

Ansonia Bd. of Educ. v. Philbrook, 

479 U.S. 60 (1986).................................................................................................................... 13

Bailey v. Delta Air Lines, 

722 F.2d 942 (1st Cir. 1983)....................................................................................................... 7

Baily v. Dallas Cnty. Sch., 

No. 3:16-cv-1642-M, 2016 WL 7638146 (N.D. Tex. Dec. 9, 2016).......................................... 7

Baker v. Am. Airlines, 

430 F.3d 750 (5th Cir. 2005) .................................................................................................... 14

Bolden v. Caravan, 

112 F. Supp.3d 785 (N.D. Ind. 2015) ......................................................................................... 9

Brener v. Diagnostic Ctr. Hosp., 

671 F.2d 141 (5th Cir. 1982) .................................................................................................... 10

Bultemeyer v. Fort Wayne Cmty. Schs., 

100 F.3d 1281 (7th Cir. 1996) .................................................................................................. 12

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

548 U.S. 53 (2006)........................................................................................................ 11, 15, 20

Case 4:21-cv-01074-P Document 6 Filed 09/22/21 Page 2 of 33 PageID 47
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Clark Cnty. Sch. Dist. v. Breeden, 

532 U.S. 268 (2001)............................................................................................................ 15, 18

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

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

report & recommendation adopted sub nom., No. 97-CA-0628, 

1998 WL 1978660 (W.D. Tex. Dec. 8, 1998) .......................................................................... 14

Davis v. Dallas Area Rapid Transit, 

383 F.3d 309 (5th Cir. 2004) .................................................................................................... 14

Davis v. Fort Bend Cnty., 

765 F.3d 480 (5th Cir. 2014) .................................................................................................... 10

Dickerson v. United Parcel Serv., 

No. 3:95-CV-2143, 1999 WL 966430 (N.D. Tex. Oct. 21, 1999)............................................ 18

Dr. A. v. Hochul, 

No. 21-cv-1009 (N.D.N.Y. Sept. 14, 2021)........................................................................ 19, 23

Drew v. Liberty Mut. Ins., 

480 F.2d 69, 72, 74 (5th Cir. 1973) ................................................................................ 2, 6, 7, 8

EEOC v. AutoNation USA Corp., 

52 F. App’x 327 (9th Cir. 2002) ................................................................................................. 9

EEOC v. Chevron Phillips Chem. Co., 

570 F.3d 606 (5th Cir. 2009) ........................................................................................ 10, 11, 16

EEOC v. Jetstream, 

No. 13-cv-02340, 2016 WL 879625 (D. Colo. Mar. 8, 2016).................................................... 9

EEOC v. Universal Mfg. Corp., 

914 F.2d 71 (5th Cir. 1990) ...................................................................................................... 13

Enyart v. Nat’l Conf. of Bar Exam’rs,

630 F.3d 1153 (9th Cir. 2011) .................................................................................................. 24

Feist v. Louisiana, 

730 F.3d 450 (5th Cir. 2013) .................................................................................................... 16

Fla. Med. Ass’n, Inc. v. U. S. Dep’t of Health, Ed. & Welfare, 

601 F.2d 199 (5th Cir. 1979) ...................................................................................................... 6

FTC v. Dean Foods Co., 

384 U.S. 597 (1966).................................................................................................................... 8

Harvest Rock Church, Inc. v. Newsom, 

141 S. Ct. 889 (2020)................................................................................................................ 23

Hilliard v. BellSouth Med. Assistance Plan, 

918 F. Supp. 1016 (S.D. Miss. 1995).......................................................................................... 7

Kathleen S. v. Dep’t of Pub. Welfare of Pa., 

10 F. Supp. 2d 476 (E.D. Pa. 1998).......................................................................................... 24

Case 4:21-cv-01074-P Document 6 Filed 09/22/21 Page 3 of 33 PageID 48
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Knights of Ku Klux Klan, Realm of La. v. E. Baton Rouge Par. Sch. Bd., 

578 F.2d 1122 (5th Cir. 1978) .................................................................................................... 6

Ladd v. Livingston, 

777 F.3d 286 (5th Cir. 2015) ...................................................................................................... 6

Love v. City of Dallas, 

No. 3:96-CV-0532-R, 1997 WL 278126 (N.D. Tex. May 14, 1997)..................... 11, 12, 15, 18

Lyon v. Illinois High Sch. Ass’n, 

No. 13-CV-00173, 2013 WL 140926 (N.D. Ill. Jan. 10, 2013), as amended (Jan. 11, 2013).. 24

Martin v. Metro. Atlanta Rapid Transit Auth., 

225 F. Supp. 2d 1362 (N.D. Ga. 2002)..................................................................................... 24

McCoy v. City of Shreveport, 

492 F.3d 551 (5th Cir. 2007) .................................................................................................... 14

McDonnell Douglas Corp. v. Green, 

411 U.S. 792 (1973).................................................................................................................. 10

Miller v. Port Auth. of N.Y. & N.J., 

351 F. Supp. 3d 762 (D.N.J. 2018)............................................................................................. 9

Moss v. Harris Cnty. Constable Precinct One, 

851 F.3d 413 (5th Cir. 2017) .................................................................................................... 16

Myers v. Hose, 

50 F.3d 278 (4th Cir. 1995) ...................................................................................................... 13

O Centro Espirita Beneficiente Uniao Do Vegetal v. Ashcroft, 

389 F.3d 973 (10th Cir. 2004) .................................................................................................. 22

Ramsay v. Nat’l Bd. of Med. Exam’rs, 

No. 19-CV-2002, 2019 WL 7372508 (E.D. Pa. Dec. 31, 2019), aff’d, 968 F.3d 251 (3d Cir. 

2020), cert. denied, 141 S. Ct. 1517 (2021).............................................................................. 24

Roberts v. Neace, 

958 F.3d 409 (6th Cir. 2020) .................................................................................................... 23

Rogers v. Commonwealth of Pa., 

No. 2:97-cv-6627, 1997 WL 793585 (E.D. Pa. Dec. 9, 1997) ................................................... 7

Rogers v. Int’l Marine Terminals, 

87 F.3d 755 (5th Cir. 1996) ...................................................................................................... 13

Roman Cath. Diocese of Brooklyn v. Cuomo, 

141 S. Ct. 63 (2020).................................................................................................................. 23

S. Bay United Pentecostal Church v. Newsom, 

141 S. Ct. 716 (2021)................................................................................................................ 23

Sheehan v. Purolator Courier Corp., 

676 F.2d 877 (2d Cir. 1981)........................................................................................................ 7

Strong v. Univ. Healthcare Sys., 

482 F.3d 802 (5th Cir. 2007) .................................................................................................... 15

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Sughrim v. New York, 

503 F. Supp. 3d 68 (S.D.N.Y. 2020)........................................................................................... 7

Tabatchnik v. Cont’l Airlines, 

262 F. App’x 674 (5th Cir. 2008) ............................................................................................. 18

Tandon v. Newsom, 

141 S. Ct. 1294 (2021).............................................................................................................. 23

Thomas v. Nat’l Ass’n of Letter Carriers, 

225 F.3d 1149 (10th Cir. 2000) .................................................................................................. 9

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

736 F.2d 1022 (5th Cir. 1984) .................................................................................................. 11

TWA v. Hardison, 

432 U.S. 63 (1977).................................................................................................................... 13

Union Pac. Ry. Co. v. Botsford,

141 U.S. 250 (1891).................................................................................................................. 23

Vaughn v. Waffle House, 

263 F. Supp. 2d 1075 (N.D. Tex. 2003) ................................................................................... 11

Ward v. Walsh, 

1 F.3d 873 (9th Cir. 1993) ........................................................................................................ 22

Weber v. Roadway Express, 

199 F.3d 270 (5th Cir. 2000) ...................................................................................................... 9

Winston v. Lee, 

470 U.S. 753 (1985).................................................................................................................. 23

Wisconsin v. Yoder, 

406 U.S. 205 (1972).................................................................................................................. 22

Statutes

42 U.S.C. § 12111......................................................................................................................... 17

42 U.S.C. § 12112................................................................................................................... 16, 17

42 U.S.C. § 12203......................................................................................................................... 18

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

42 U.S.C. § 2000e-2........................................................................................................................ 9

42 U.S.C. § 2000e-5.................................................................................................................... 7, 8

Other Authorities

Comirnaty and Pfizer-BioNTech COVID-19 Vaccine, U.S. FOOD & DRUG. ADMIN., 

https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease2019-covid-19/comirnaty-and-pfizer-biontech-covid-19-vaccine.............................................. 3

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David Koenig, United Airlines will require US employees to be vaccinated, 

AP NEWS (Aug. 6, 2021) ............................................................................................................ 4

EU Digital COVID Certificate, EUROPEAN COMM’N ................................................................... 14

Johnson & Johnson COVID-19 Vaccine Authorized by U.S. FDA For Emergency 

Use – First Single-Shot Vaccine in Fight Against Global Pandemic, 

JOHNSON & JOHNSON (Feb. 27, 2021)......................................................................................... 2

Jumpseat Committee Update, UNITED MASTER EXECUTIVE COUNCIL (Sept. 16, 2021)................. 4

Leslie Josephs, United will require its U.S. employees to be vaccinated, a first for 

country’s major airlines, CNBC (Aug. 6, 2021) .................................................................... 3, 4

Michael Erman, U.S. FDA authorizes Pfizer COVID-19 vaccine for emergency use, 

REUTERS (Dec. 11, 2020)............................................................................................................ 2

Moderna COVID-19 Vaccine, U.S. FOOD & DRUG ADMIN., https://www.fda.gov/

emergency-preparedness-and-response/coronavirus-disease-2019-covid-19/modernacovid-19-vaccine......................................................................................................................... 2

Path out of the Pandemic, President Biden’s COVID-19 Action Plan, THE WHITE HOUSE ........ 13

Zach Griff, United’s ditching 2 major COVID-19 modifications, including

electrostatic spraying, THE POINTS GUY (July 12, 2021) ........................................................... 4

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United Airlines (“United”) recently announced that its employees must receive a COVID19 vaccine by September 27, 2021, or face termination. Plaintiffs represent a class of United 

employees with religious and medical objections to receiving that vaccine. Each Plaintiff 

requested a religious or medical accommodation, but United responded by offering—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 law by 

retaliating against Plaintiffs for participating in the protected activity of requesting 

accommodations, essentially penalizing employees for exercising their rights.

Each Plaintiff has filed administrative claims with the Equal Employment Opportunity 

Commission (“EEOC”) challenging United’s discriminatory practices. Those claims remain 

pending, and this Motion asks only that the Court suspend the timeline of United’s vaccine 

mandate temporarily for those who request religious or medical accommodations to allow the 

EEOC sufficient time to complete its review of Plaintiffs’ claims. To be clear: Plaintiffs do not 

challenge the vaccine mandate itself through this action. They merely ask the Court to require 

United to follow federal law and grant reasonable accommodations to the vaccine mandate.

Unless the Court temporarily enjoins United’s mandate for all employees with religious or 

medical reasons for seeking an accommodation, Plaintiffs and thousands of others similarly 

situated will suffer harms that neither the EEOC nor this Court can remedy. Facing the risk of lost 

income, many United employees may opt to receive the vaccine, despite their religious beliefs or 

health concerns. Other employees may suffer such significant harms that monetary damages will 

be insufficient as a remedy. These injuries include homelessness, the inability to continue paying 

for life-saving medical care, and the disruption of a dependent’s college education. The Court 

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should exercise its equity jurisdiction to temporarily enjoin United’s vaccine mandate for those 

with religious or medical reasons for seeking an accommodation “to preserve the court’s ability to 

later order meaningful relief.” Drew v. Liberty Mut. Ins., 480 F.2d 69, 72, 74 (5th Cir. 1973).

BACKGROUND

By Spring 2020, COVID-19 was spreading rapidly around the world. At that time, United 

began implementing certain mitigation procedures for its workforce, including requiring 

employees to wear masks and maintain distance from others. See Sambrano Aff. ¶ 8 (App.3); 

Hamilton Aff. ¶ 5 (App.7). Since then, at least three separate COVID-19 vaccines have been 

developed and authorized for use in the United States. 

The Food and Drug Administration (“FDA”) issued an Emergency Use Authorization 

(“EUA”) for the Pfizer-BioNTech vaccine in December 2020. See Michael Erman, U.S. FDA 

authorizes Pfizer COVID-19 vaccine for emergency use, REUTERS (Dec. 11, 2020), 

https://www.reuters.com/article/us-health-coronavirus-fda-pfizer/u-s-fda-authorizes-pfizercovid-19-vaccine-for-emergency-use-idUSKBN28L1IG. A week later, the FDA issued a second 

EUA for the Moderna COVID-19 vaccine. See Moderna COVID-19 Vaccine, U.S. FOOD & DRUG 

ADMIN., https://www.fda.gov/emergency-preparedness-and-response/coronavirus-disease-2019-

covid-19/moderna-covid-19-vaccine. Finally, the FDA issued an EUA for the Johnson & Johnson 

COVID-19 vaccine on February 27, 2021. See Johnson & Johnson COVID-19 Vaccine Authorized 

by U.S. FDA For Emergency Use – First Single-Shot Vaccine in Fight Against Global Pandemic, 

JOHNSON & JOHNSON (Feb. 27, 2021), https://www.jnj.com/johnson-johnson-covid-19-vaccineauthorized-by-u-s-fda-for-emergency-usefirst-single-shot-vaccine-in-fight-against-globalpandemic. On August 23, 2021, the FDA issued full approval for the Pfizer vaccine Comirnaty 

for individuals 16 years of age and older. See Comirnaty and Pfizer-BioNTech COVID-19 

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Vaccine, U.S. FOOD & DRUG. ADMIN., https://www.fda.gov/emergency-preparedness-andresponse/coronavirus-disease-2019-covid-19/comirnaty-and-pfizer-biontech-covid-19-vaccine. 

On August 6, 2021, United announced that all employees—even those who already had 

the disease and are still immune—would be required to receive a COVID-19 vaccine within five 

weeks of the FDA granting full approval of a vaccine, or five weeks after September 20, 2021, 

whichever came first. See Hamilton Aff. ¶ 4 (App.7). Because the FDA approved a form of 

Pfizer’s COVID-19 vaccine on August 23, 2021, United employees must receive a COVID-19 

vaccine by September 27, 2021, or be terminated. See id. United’s mandate is absolute; there is 

no alternative for periodic testing, mask wearing, or social distancing—even for employees who 

have recovered from COVID-19 and possess antibodies. Employees must choose vaccination or 

termination—or, for “accommodated” employees, the potential of years without pay.

When United announced the vaccine mandate, it stated that employees could request 

accommodations for religious or health reasons. But United’s Chief Executive Officer Scott Kirby 

then threatened United employees “to be very careful about” requesting such accommodations. 

Mr. Kirby stated that there would be very “few people that get through the medical and religious 

exemption process”—describing such employees derisively as “all [of a] sudden decid[ing] ‘I’m 

really religious.’” Id. ¶ 15 (App. 9). Mr. Kirby threatened those employees by stating that they 

are “putting [their] job[s] on the line” if they request such accommodations. Id.

According to United, this vaccination mandate will increase employee safety. See Leslie 

Josephs, United will require its U.S. employees to be vaccinated, a first for country’s major 

airlines, CNBC (Aug. 6, 2021), https://www.cnbc.com/2021/08/06/united-airlines-vaccinemandate-employees.html. But United does not require any passenger flying on its planes, or 

interacting with its staff, to be vaccinated. See David Koenig, United Airlines will require US 

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employees to be vaccinated, AP NEWS (Aug. 6, 2021), https://apnews.com/article/united-airlinesvaccine-mandate-employees-frontier-e8eef8e8f11d4924b81768484e5401a1. Nor does it require 

its employees from other countries to be vaccinated, even though those employees work and come 

into contact with United crews from the United States. Id. And pilots from other airlines allowed 

to ride in the “jumpseat” of the aircraft (in the cockpit) are not subject to United’s vaccine mandate, 

although they may be asked to wear a mask during the flight at the discretion of the United pilot. 

See Jumpseat Committee Update, UNITED MASTER EXECUTIVE COUNCIL (Sept. 16, 2021)

https://contentsharing.net/actions/email_mobile_web_version.cfm?recipient_id=2940366754&

message_id=20802705&user_id=ALPA&jobid=53070823. At the same time, United has relaxed 

requirements for flight attendants wearing gloves and eye protection, and the company no longer 

ensures the “deep” cleaning of aircraft after each flight as it did at the outset of the pandemic. See, 

e.g., Zach Griff, United’s ditching 2 major COVID-19 modifications, including electrostatic 

spraying, THE POINTS GUY (July 12, 2021), https://thepointsguy.com/news/united-endselectrostatic-spraying-deplaning-process/. Moreover, United does not require the regional airline 

crews that fly for them to be vaccinated. See Josephs, supra.

Plaintiffs are six United employees in varying positions and working environments. 

Plaintiffs Sambrano and Turnbough are pilots. See Sambrano Aff. ¶ 2 (App.2); Turnbough Aff.

¶ 2 (App.13). Plaintiff Castillo is an Aircraft Technician. See Castillo Aff. ¶ 2 (App.18). Plaintiff 

Hamilton is a Station Operations Representative who works in an office setting. See Hamilton 

Aff. ¶ 2 (App.7). Plaintiff Jonas is a United Club Representative at DFW, where she works in the 

United Club lounge. See Jonas Aff. ¶ 2 (App.23). And Plaintiff Kincannon is a Flight Attendant. 

See Kincannon Aff. ¶ 2 (App.28). Each Plaintiff requested a reasonable accommodation from 

United’s vaccine mandate for religious or medical reasons, or both. See, e.g., Sambrano Aff. ¶ 11

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(App.3); Castillo Aff. ¶ 5 (App.18); Turnbough Aff. ¶ 6 (App.14); Jonas Aff. ¶ 16 (App.25).

Despite each Plaintiff working in a different environment—aircraft, offices, or large open 

spaces—United failed to contact them to discuss possible accommodations, responding only with 

a uniform “accommodation” of indefinite unpaid leave. See Sambrano Aff. ¶ 12 (App.3); 

Turnbough Aff. ¶ 9 (App.14). While on unpaid leave, the Plaintiffs, like all other “accommodated” 

United employees across the country, may not use accrued vacation or sick leave, may not accrue 

vacation or sick leave, and must pay all medical insurance premiums, including United’s portion. 

See Sambrano Aff. ¶ 13 (App.3); Castillo Aff. ¶ 8; Turnbough Aff. ¶ 10 (App.14). While requests 

were nominally “granted,” the result was termination.1

As discussed in the accompanying declarations, United’s discriminatory and retaliatory 

actions impose significant personal and professional harms on each Plaintiff. Each Plaintiff will 

suffer immediate financial hardship if they lose their regular income stream. See, e.g., Sambrano 

Aff. ¶ 17 (App.4); Castillo Aff. ¶ 14 (App.19). Several will be unable to pay necessary medical 

expenses, and the specter of losing health insurance is presently impacting healthcare decisions 

regarding treatment options. See, e.g., Castillo Aff. ¶ 14 (App.19); Hamilton Aff. ¶¶ 12–15

(App.8–9); Jonas Aff. ¶ 11 (App.24). Extended unpaid leave will also affect certain Plaintiffs’ 

ability to afford housing, transportation, and education. See Castillo Aff. ¶ 13 (App.19); Sambrano 

Aff. ¶ 17 (App.4); Jonas Aff. ¶¶ 12-13 (App.24). Moreover, United’s actions have brought 

significant stress into Plaintiffs’ lives and are disrupting family relationships. See, e.g., Hamilton 

Aff. ¶ 9 (App.8); Jonas Aff. ¶ 14 (App.24). 

1 United will now allow individuals granted medical accommodations to first use their earned sick 

pay while out of work, even though there is no sickness preventing the employees from working. 

Once that brief amount of pay is used, however, the employee will be on regular unpaid leave.

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STANDARD OF REVIEW

To obtain a temporary restraining order or 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, 288 (5th Cir. 2015). “[F]inding a substantial likelihood that movant will 

ultimately prevail on the merits does not contemplate a finding of fixed quantitative value. Rather, 

a sliding scale can be employed, balancing the hardships associated with the issuance or denial of 

a preliminary injunction with the degree of likelihood of success on the merits.” Fla. Med. Ass’n, 

Inc. v. U. S. Dep’t of Health, Ed. & Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979) (citation and 

quotation marks omitted). “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). 

ARGUMENT

I. EEOC Review is No Obstacle Here to Preliminary Injunctive Relief.

Each Plaintiff has a pending charge with the EEOC complaining of United’s discriminatory 

and retaliatory actions. See Sambrano Aff. ¶ 19 (App.4); Castillo Aff. ¶ 16 (App.20); Hamilton 

Aff. ¶ 19 (App.9); Jonas Aff. ¶ 16 (App.25); Kincannon Aff. ¶ 15 (App.30); Turnbough Aff. ¶ 18

(App.16). This does not prevent an injunction against United’s current course of actions. 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, 480 F.2d at 71, 72. In such cases, an “individual 

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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; see also id. at 74 (preliminary injunctive relief is 

necessary “to preserve the court’s ability to later order meaningful relief.”); Hilliard v. BellSouth 

Med. Assistance Plan, 918 F. Supp. 1016, 1026 (S.D. Miss. 1995) (holding that a plaintiff may 

“proceed [on an ADA claim] without first exhausting the EEOC’s administrative process” where 

there is a showing of irreparable injury); Baily v. Dallas Cnty. 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.”). 

Other courts outside this Circuit agree. The Second Circuit explained that where, as here, 

“the court eventually will have jurisdiction of the substantive claim and an administrative tribunal 

has preliminary jurisdiction, the court has incidental equity jurisdiction to grant temporary relief 

to preserve the status quo pending the ripening of the claim for judicial action on its merits.”

Sheehan v. Purolator Courier Corp., 676 F.2d 877, 884 (2d Cir. 1981). The First Circuit and 

several district courts have also held that plaintiffs may obtain injunctive relief during the EEOC 

process. See Bailey v. Delta Air Lines, 722 F.2d 942, 944 (1st Cir. 1983); Sughrim v. New York, 

503 F. Supp. 3d 68, 96 (S.D.N.Y. 2020) (“[T]emporary injunctive relief is available on Title VII 

claims before a plaintiff receives a right to sue letter from the EEOC[.]”); Rogers v. Commonwealth 

of Pa., No. 2:97-cv-6627, 1997 WL 793585, at *3 (E.D. Pa. Dec. 9, 1997) (“42 U.S.C. § 2000e5(f)(2) does not divest an individual plaintiff of the right to seek injunctive relief during an EEOC 

investigation.”).

This conclusion is consistent with the history of Title VII. See Sheehan, 676 F.2d at 881. 

Before Title VII was amended in 1972, “the sole right to enforce Title VII in the courts was given 

to the person aggrieved[,]” including seeking preliminary injunctive relief. Id. at 882–86. In 1972, 

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Congress amended Title VII to “explicitly authorize[ ] the EEOC to ‘bring an action for appropriate 

temporary or preliminary relief’ at any time, regardless of the status of any informal negotiation[.]” 

Id. at 881 (quoting 42 U.S.C. § 2000e-5(f)(2)). While Congress did not add a “comparable 

provision with respect to individuals,” the history of the provision shows there was no need for it:

“[R]eading the statute as a whole, and having due regard for Congress’s intent in enacting Title 

VII, . . . courts [are] entitled to use [their] inherent equity power to award temporary injunctive 

relief, in appropriate circumstances, in order to maintain the status quo prior to the EEOC’s 

issuance of a right to sue letter.” Id.; see also Drew, 480 F.2d at 74 (concluding that Congress’s 

silence should not be interpreted as “impliedly destroy[ing] an existing right of action”). As the 

Supreme Court has explained elsewhere, there is “a limited judicial power to preserve the court’s 

jurisdiction or maintain the status quo by injunction pending review of an agency’s action through 

the prescribed statutory channels. . . . Such power has been deemed merely incidental to the court’s 

jurisdiction to review final agency action[.]” FTC v. Dean Foods Co., 384 U.S. 597, 604 (1966)

(quotation marks omitted).

Preliminary injunctive relief is imperative to maintain the status quo here. Without such

relief, the Plaintiffs face an impossible choice—one for which the EEOC and this Court will have 

no remedy. Plaintiffs must decide by September 27, 2021, whether to receive the COVID-19 

vaccine or face termination—literally or functionally. It is understandable that United employees 

may be considering acquiescing to the mandate, as many have already been coerced into doing, 

thereby risking their health and/or their conscience in favor of their livelihood. If the Court does 

not enter preliminary relief for those employees with religious or medical reasons for seeking an 

injunction and those employees determine that they must forsake their consciences or health to 

maintain their income, that decision cannot be reversed or remedied by a subsequent EEOC 

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decision. Moreover, Plaintiffs face many other immediate harms for which the Court will not be 

able to fashion a remedy later. “[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.

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

Ongoing Violation of Federal Law.

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

United has violated Title VII in multiple ways. First, the company discriminated against

Plaintiffs by failing to engage in the interactive process and by not providing reasonable religious

accommodations. Second, United retaliated against Plaintiffs for engaging in protected activity. 

Any of these actions will give rise to liability for United.2 

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 an employee’s . . . religious observance or practice without undue 

hardship on the conduct of the employer’s business.” Id. § 2000e(j); see Weber v. Roadway 

Express, 199 F.3d 270, 273 (5th Cir. 2000). After receiving an accommodation request, “the 

employer is obligated by law to engage in an interactive process—a meaningful dialogue with the 

2 Plaintiffs recognize that courts “have not been consistent” about whether Title VII provides an 

independent cause of action for failure to engage in the interactive process. Miller v. Port Auth. 

of N.Y. & N.J., 351 F. Supp. 3d 762, 787 (D.N.J. 2018). Some courts recognize an obligation 

under Title VII to engage in the interactive process. See, e.g., EEOC v. AutoNation USA Corp., 

52 F. App’x 327, 329 (9th Cir. 2002); Am. Postal Workers Union v. Postmaster Gen., 781 F.2d 

772, 777 (9th Cir. 1986); Thomas v. Nat’l Ass’n of Letter Carriers, 225 F.3d 1149, 1155 (10th Cir. 

2000). Others do not. See EEOC v. Jetstream, No. 13-cv-02340, 2016 WL 879625, at *4 (D. 

Colo. Mar. 8, 2016); Bolden v. Caravan, 112 F. Supp.3d 785, 791 (N.D. Ind. 2015). The argument 

is academic here, though. as Plaintiffs will succeed on their Title VII discrimination claim either 

way. United’s failure to engage in the interactive process merely underscores the 

unreasonableness of the so-called accommodation. United did not bother to engage with the 

requesters because it never had any intention of accommodating the requests.

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employee[.]” EEOC v. Chevron Phillips Chem. Co., 570 F.3d 606, 621 (5th Cir. 2009) (cleaned 

up). 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 the interactive process and failed to 

provide any reasonable religious accommodations. As such, 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.” Davis v. Fort Bend Cnty., 765 F.3d 480, 485 (5th Cir. 2014) (citing McDonnell 

Douglas Corp. v. Green, 411 U.S. 792 (1973)). In order to establish a prima facie case of religious 

discrimination based on a failure to accommodate, Plaintiffs must show that: (1) they have bona 

fide religious beliefs that conflict with an employment requirement; (2) about which they informed 

United; and (3) they suffered an adverse employment action for failing to comply with the 

conflicting employment requirement. Id. Plaintiffs are likely to succeed on each prong. 

On the first prong, “a court’s inquiry” does not analyze the merits of the religious beliefs; 

“whether the belief is a true religious tenet[ ] is not open to question.” Davis, 765 F.3d 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. (alteration in original). United has already 

conceded this issue, accepting Plaintiffs’ religious beliefs when it purported to grant such 

requesters an “accommodation.” See, e.g., Sambrano Aff. ¶ 12 (App.3); Hamilton Aff. ¶ 11

(App.8). United cannot argue now that those employees lack religious bases for requesting an 

accommodation. Plaintiffs are thus likely to succeed in satisfying the first two prongs of the prima 

facie case requirement.

Plaintiffs will also be able to show that they suffered an adverse employment action. The 

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only accommodation United offered was indefinite unpaid leave, and “leave without pay 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 action.” Id. The 

Supreme Court agrees, holding that 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 

Supreme 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 month without a paycheck to be a serious hardship.” Id. Yet 

United is forcing employees who requested a religious accommodation, even employees with preexisting 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 suffering undue hardship. Turpen v. Missouri-Kansas-Texas R.R. Co., 

736 F.2d 1022, 1026 (5th Cir. 1984); see also 42 U.S.C. § 2000e(j). United cannot do so. The 

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. And 

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United’s approach to the accommodation requests was certainly not made in “good faith.” Id.; 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 intended to provide an accommodation that would 

keep employees whose requests were “approved” actually working.

In determining whether a company has engaged in an adequate search for a reasonable 

accommodation, “courts should attempt to isolate the cause of the breakdown and then assign 

responsibility.” Bultemeyer, 100 F.3d at 1285. The only breakdown here occurred when United 

refused to engage with its employees and instead announced a single accommodation for everyone. 

United will not be able to show that it engaged in the interactive process, which is made clear by 

the fact that United did not offer any requester an accommodation tailored to their request or 

circumstances. In fact, 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 consciences. See Kincannon Aff. ¶ 7 (App.29).

United also failed to offer reasonable accommodations. Forcing employees into an 

indefinite amount of time on unpaid leave—potentially lasting several years—is effectively 

termination. See Love, 1997 WL 278126, at *6.3 But this cannot be reasonable because 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 

3 To be sure, there are cases holding that unpaid leave “can be a reasonable accommodation.” 

Delaval v. PTech Drilling Tubulars, 824 F.3d 476, 481 (5th Cir. 2016). In contrast, Plaintiffs have 

not requested unpaid leave.

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question.” Rogers v. Int’l Marine Terminals, 87 F.3d 755, 759–60 (5th Cir. 1996) (quoting Myers 

v. Hose, 50 F.3d 278, 283 (4th Cir. 1995)). 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. 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)).

United may seek to rely on the Supreme Court’s decision in TWA v. Hardison, 432 U.S. 

63 (1977), where the Court held that requiring an employer “to bear more than a de minimis cost” 

in order to accommodate an employee “is an undue hardship.” Id. at 84. But Hardison differs 

substantially from this case. First, unlike Hardison, United did not attempt to determine the cost 

of accommodating its employees. Second, 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. Id. at 76-77. In that context, such 

burdens exceeded a “de minimis cost” and constituted an “undue hardship.” Id. at 84. 

In contrast, Plaintiffs here wish to continue working their jobs without being required to 

violate their conscience. They are not asking for any accommodation that places a hardship on 

United. Indeed, there are a host of reasonable accommodations that are not unduly burdensome, 

including: mask wearing, periodic testing for COVID-19 antibodies, or periodic COVID-19

testing. Even the recent federal order regarding vaccine mandates for private employers 

contemplates testing as a viable option. See Path out of the Pandemic, President Biden’s 

COVID-19 Action Plan, THE WHITE HOUSE, https://www.whitehouse.gov/covidplan/. Along 

those lines, the European Union’s digital COVID-19 certificate considers vaccination equivalent 

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to a negative COVID-19 test or having previously recovered from COVID-19. See EU Digital 

COVID Certificate, EUROPEAN COMM’N, https://ec.europa.eu/info/live-work-traveleu/coronavirus-response/safe-covid-19-vaccines-europeans/eu-digital-covid-certificate_en.

Other options abound, which is why an arbitrary, across-the-board “accommodation” of indefinite 

unpaid leave finds no support in Hardison—United cannot identify a hardship associated with 

other accommodation possibilities it did not consider.

2. Title VII also makes it unlawful for an employer to retaliate against an employee who 

engaged 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 

then bears the ultimate burden of proving that the employer’s proffered reason is not true but

instead 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 

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), report & recommendation adopted sub nom., 

No. 97-CA-0628, 1998 WL 1978660 (W.D. Tex. Dec. 8, 1998). United responded by taking 

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adverse employment actions—determining that it is placing each employee who requested a 

religious accommodation on indefinite unpaid leave (with benefits stripped away), or denying the 

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

imposed by the company, and then preparing to terminate the employee. See Love, 1997 WL 

278126, at *6; Burlington N., 548 U.S. at 72. And United’s antipathy toward employees with 

religious beliefs shows that United threatened indefinite leave because of the employees’ religious 

beliefs. Indeed, 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). 

Further, temporal proximity shows a causal connection. See Clark Cnty. 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.

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

31, 2021, the request will be “approved,” but the employee will be heavily penalized. And if the 

request was not made by August 31, United brushes it aside and administratively denies the 

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

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

¶ 7 (App.18). To the extent United suggests now that its indefinite unpaid leave decision was 

legitimate and nonretaliatory, that argument is undercut by the obvious disdain United has shown 

for its employees with religious beliefs. See Hamilton Aff. ¶ 15 (App.9). 

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

United also violated the ADA in multiple ways. United failed to engage in the 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 Cnty. Constable Precinct One, 851 F.3d 413, 417 (5th Cir. 2017). 

The Plaintiffs are likely to satisfy each of these requirements. 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. As the Plaintiffs seeking a medical exemption explained to United, they face a 

risk of severe impairment by receiving the COVID-19 vaccine. See, e.g., Turnbough Aff. ¶ 6

(App.14). But they are still able to perform the essential functions of their jobs. See id. Plaintiffs 

are thus likely to satisfy the first two prima facie case requirements. 

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

“meaningful dialogue” to discuss possible accommodations and to grant those that are reasonable. 

Chevron, 570 F.3d at 621. For the reasons already shown, United failed to engage in such an 

interactive process with any requester. See supra Part II.A. United announced its one-size-fits-all 

accommodation without any attempt to identify the most reasonable accommodation for any 

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specific requester, including those who were already immune through a prior infection. 

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

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

supra Part II.A. And 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 pay runs 

out) and it unfairly takes away hours that employees have earned and may need later. At the same 

time, United cannot show any burden sufficient to justify its unreasonable accommodation. United 

will again be unable to rely on Hardison, as the ADA sets forth a more stringent “undue hardship” 

standard. See 42 U.S.C. § 12111(10)(A) (“[Under the ADA], the term ‘undue hardship’ means an 

action requiring significant difficulty or expense.”). 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. Accordingly, Plaintiffs 

are likely to succeed in showing that United violated the ADA by failing to engage in the 

interactive process and by failing to provide reasonable accommodations.

Confirming that United is actively violating the ADA, it conceded that there are mitigation 

measures available to accommodate employees. United is willing to consider mitigation measures 

for one group (the arbitrarily defined “non-customer facing”) but not others. See Compl. ¶ 53. Of 

course, such consideration is exactly what the interactive process requires. Moreover, the promise 

of a potential return at an indeterminate point in the future does little to ameliorate Plaintiffs’ 

harms. And to the extent United attempts to provide accommodations to medical requesters rather 

than religious requesters, it simply reinforces its antipathy toward sincerely held religious beliefs. 

2. The ADA also makes it unlawful to retaliate against an employee for seeking an 

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accommodation. See 42 U.S.C. § 12203(a). “Retaliation claims under the ADA 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). “[M]aking a request for a 

reasonable accommodation under the ADA may constitute engaging in protected activity.” 

Tabatchnik v. Cont’l Airlines, 262 F. App’x 674, 676 (5th Cir. 2008). And 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 are likely able to show that their decision to identify a disability and 

request an accommodation was the reason United subjected 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 such 

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 

are likely to succeed on their ADA retaliation claims.

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

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

COVID-19 vaccine, at the expense of their conscience 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 

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“accommodation,” to compel its employees to violate their conscience or put their health at risk. 

Without vaccination in a matter of days, United employees face formal or effective termination. 

One Ft. Worth-area man’s story proves the immediate harm at issue. David Lockwood—

a Station Operations Representative at DFW—had requested a religious accommodation. See

Lockwood Aff. ¶¶ 1, 3 (App.33). But 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 in that decision as the threat of 

immediate loss of income may be enough to force many United employees to forgo their religious 

beliefs and their health. 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 that health care workers 

receive the COVID-19 vaccine by September 27, 2021. See Order, Dr. A. v. Hochul, No. 21-cv1009 (N.D.N.Y. Sept. 14, 2021), ECF No. 7.

A survey of the accompanying declarations further demonstrates the immediate harm 

United is about to inflict on its employees. For example, if he is placed on unpaid leave, Mr. 

Castillo will be homeless in October when his current apartment lease expires. See Castillo Aff.

¶ 13 (App.19). 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 on October 2, 2021. See id. Mr. Sambrano will need to determine how he can 

continue paying for his child’s college education, or whether the 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). 

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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, which substantially increases a risk that his multiple sclerosis will relapse. See Turnbough 

Aff. ¶¶ 14–15 (App.15). 

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 

Court cannot fashion a remedy for that at a later date. Moreover, the financial harms themselves 

warrant preliminary injunctive relief. 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 that “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. That says nothing about the 

myriad non-financial harms that accompany the loss of a paycheck, such as: the risk of a stressinduced MS relapse (Turnbough Aff. ¶ 15 (App.15)); marital strain (Kincannon Aff. ¶ 12

(App.29)); family stress (Sambrano Aff. ¶ 17 (App.4)); stress-induced high blood pressure (Jonas 

Aff. ¶ 14 (App.24)).

The Court may prevent each of these harms by granting preliminary injunctive relief. 

Again, Plaintiffs do not challenge United’s ability to institute a COVID-19 vaccine mandate 

generally. They merely ask that United comply with federal law by engaging in an interactive 

process with individuals needing religious or medical accommodations, and by granting

reasonable accommodations for those individuals. By enjoining United’s vaccine mandate for 

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those employees with religious or medical bases for requesting accommodations, the Court will 

ensure that it is able to fashion an appropriate remedy at a later date. If the Court does not do so, 

several Plaintiffs (and likely numerous other United employees) will suffer irreparable harms.

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

The harms discussed above are serious and irreparable. The risk of United forcing 

employees to forsake their religious beliefs and health far outweighs any harm that the injunction 

may cause. Any claim that the vaccine mandate must go into effect by September 27 rings hollow; 

United has operated since spring 2020 without such a mandate and there is no compelling reason 

why it cannot continue doing so for enough time to engage in the interactive process required by 

federal law. Had United engaged in this process, it would have likely 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 law, 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 

federal law does not impose a harm that outweighs Plaintiffs’ irreparable injury.

While United will likely argue that safety concerns over COVID-19 create a harm for the 

airline in the case of an injunction, this argument fails. 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 all 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 of United aircraft to be 

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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. Thus, even assuming 

it is appropriate for United to require vaccinations, there is no safety justification that can support 

a blanket policy that fails to take individual situations into account. Perhaps that is why federal 

law requires United to engage in the interactive process with the 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 

also serve the public interest. For example, 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. “Religion is the first of our rights under the First Amendment and the Bill of Rights. 

The right to the free exercise of religion is a precious American invention . . . to be jealously 

guarded. It is the right of a human being to respond to what that person’s conscience says is the 

dictate of God.” Ward v. Walsh, 1 F.3d 873, 876 (9th Cir. 1993). The value of religious freedom 

has been “zealously protected, sometimes even at the expense of other interests of admittedly high 

social importance.” Wisconsin v. Yoder, 406 U.S. 205, 214 (1972). To be sure, there is also an

important public interest in fighting the spread of COVID-19. “But there is an equally strong

public interest in a citizen’s free exercise of religion” in being able to maintain his employment 

without compromising his religious beliefs. O Centro Espirita Beneficiente Uniao Do Vegetal v.

Ashcroft, 389 F.3d 973, 1010 (10th Cir. 2004) (en banc) (Seymour, J., concurring in part and 

dissenting in part), aff’d and remanded sub nom. Gonzales v. O Centro Espirita Beneficente Uniao

do Vegetal, 546 U.S. 418 (2006). 

Recognizing the centrality of religious freedom to the public interest, other courts—

including the Supreme Court—have protected religious exercise even in the face of competing 

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public health considerations. See, e.g., Tandon v. Newsom, 141 S. Ct. 1294 (2021) (ordering 

preliminary injunctive relief against COVID-19 public health order restricting religious exercise); 

S. Bay United Pentecostal Church v. Newsom, 141 S. Ct. 716 (2021) (same); Roman Cath. Diocese

of Brooklyn v. Cuomo, 141 S. Ct. 63 (2020) (same); Harvest Rock Church, Inc. v. Newsom, 141 S. 

Ct. 889 (2020) (same); Roberts v. Neace, 958 F.3d 409 (6th Cir. 2020) (same); Order, Dr. A., No.

21-cv-10009 (N.D.N.Y. Sept. 13, 2021). The Supreme Court has admonished lower courts that 

“[e]ven in a pandemic,” religious freedom “cannot be put away and forgotten.” Roman Cath.

Diocese of Brooklyn, 141 S. Ct. at 68. Protecting that guarantee through injunctive relief serves a 

vital public interest. 

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

their doctors—to protect their health. As early as 1891, the Supreme Court recognized, in holding 

that a court could not force a plaintiff to submit to a surgical examination as to the extent of the 

injury sued for, that “[n]o 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 decision-making and holding that 

a court could not force a defendant, for evidentiary purposes, to have surgery to remove a bullet 

fired by a victim). The public interest 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.

Case 4:21-cv-01074-P Document 6 Filed 09/22/21 Page 29 of 33 PageID 74
24

Indeed, the ADA protects such decision-making by requiring an employer to provide 

reasonable accommodations. As another Circuit recognized, “[i]n enacting the ADA, Congress 

demonstrated its view that the public has an interest in ensuring the eradication of discrimination 

on the basis of disabilities.” Enyart v. Nat’l Conf. of Bar Exam’rs, 630 F.3d 1153, 1167 (9th Cir. 

2011). Many district courts have recognized a public interest in enforcing the ADA. See, e.g., 

Ramsay v. Nat’l Bd. of Med. Exam’rs, No. 19-CV-2002, 2019 WL 7372508, at *19 (E.D. Pa. Dec. 

31, 2019), aff’d, 968 F.3d 251 (3d Cir. 2020), cert. denied, 141 S. Ct. 1517 (2021) (“It is obviously 

in the public interest that the dictates of the ADA . . . be followed—Congress so decreed by passing 

[the] statute[].”); Lyon v. Illinois High Sch. Ass’n, No. 13-CV-00173, 2013 WL 140926, at *5 

(N.D. Ill. Jan. 10, 2013), as amended (Jan. 11, 2013) (“The general public has a clear interest in 

protecting the rights of the disabled; and by providing this disabled individual with the reasonable 

accommodations to which he is entitled under the law, the interests of the public are furthered.”). 

This Court should hold, consistent with other courts, that there is a public interest in enforcing the 

ADA to protect the rights of disabled individuals. See, e.g., Enyart, 630 F.3d at 1167 (noting “the 

public’s interest in enforcement of the ADA and in elimination of discrimination on the basis of 

disability”); Kathleen S. v. Dep’t of Pub. Welfare of Pa., 10 F. Supp. 2d 476, 481 (E.D. Pa. 1998)

(“It is clearly in the interest of the public to enforce the mandate of Congress under the [ADA].”).

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

employment and their right to make their own medical decisions because “[t]he public has an 

interest in the full participation of the disabled in the economic, social and recreational life of the 

community.” Martin v. Metro. Atlanta Rapid Transit Auth., 225 F. Supp. 2d 1362, 1383 (N.D. 

Ga. 2002) (citation omitted). 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 

Case 4:21-cv-01074-P Document 6 Filed 09/22/21 Page 30 of 33 PageID 75
25

devastating economic consequences for Plaintiffs and those similarly situated, and those economic 

impacts affect the community at large.4

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 law. And it certainly does not allow United to effectively terminate all employees 

who requested an accommodation. By United’s own admission, nearly 90 percent of pilots and 

80 percent of flight attendants have received a COVID-19 vaccine. See Josephs, supra. Moreover, 

a large portion of the public likely possesses antibodies against COVID-19 due to previous 

infection. This Motion thus asks the Court to enjoin United’s mandate for employees seeking 

accommodations for religious or medical reasons, and the public interest is not to the contrary. 

CONCLUSION

Plaintiffs ask this Court to preserve the status quo by allowing the EEOC to continue 

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

prevent irreparable harm, the Court should enjoin United from terminating or placing on indefinite 

leave any employee who has a religious or medical basis for seeking an accommodation. The 

Court should also enjoin United from denying as untimely any request for a religious or medical 

accommodation. By granting temporary preliminary relief, the Court will ensure that the EEOC 

and this Court will be able to order meaningful relief later. 

September 22, 2021 Respectfully submitted,

4 United may argue that the public interest favors its vaccine mandate because the spread of 

COVID-19 negatively affects the economy. United could have furthered that interest through 

mask wearing, antibody testing, or COVID-19 testing. Additionally, the public is well-served by 

uninterrupted flow of air traffic. United’s “accommodation” policy will likely cost it at least 5% 

of its workforce, which will have consequences for the public. 

Case 4:21-cv-01074-P Document 6 Filed 09/22/21 Page 31 of 33 PageID 76
26

/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

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

* Pro hac vice motions forthcoming

Counsel for Plaintiffs and the 

Proposed Class

Case 4:21-cv-01074-P Document 6 Filed 09/22/21 Page 32 of 33 PageID 77
CERTIFICATE OF SERVICE

On September 22, 2021, I filed the foregoing document with the clerk of court for the 

United States District Court, Northern District of Texas. I hereby certify that I have served the 

document on all counsel and/or pro se parties of record by a manner authorized by Federal Rule 

of Civil Procedure 5(b)(2). 

Additionally, I communicated both by telephone and email with Ada W. Dolph, Seyfarth 

Shaw LLP, who informed me that she was counsel for Defendant, and that the following attorneys 

would be representing Defendant in this matter:

Ada W. Dolph

Seyfarth Shaw LLP

233 S. Wacker Drive, Suite 8000

Chicago, Illinois 60606 

312.460.5977

adolph@seyfarth.com

Steve Shardonofsky

Seyfarth Shaw LLP

700 Milam St., Suite 1400 

Houston, Texas 77002 

713.225.1001

sshardonofsky@seyfarth.com 

Vanessa Rogers 

Seyfarth Shaw LLP 

700 Milam St., Suite 1400 

Houston, Texas 77002

713.860.0054 

vrogers@seyfarth.com 

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 6 Filed 09/22/21 Page 33 of 33 PageID 78