UNITED STATES DISTRICT COURT 

FOR THE NORTHERN DISTRICT OF TEXAS 

FORT WORTH DIVISION 

DAVID SAMBRANO, ET AL.,

Plaintiffs, 

v. No. 4:21-cv-1074-P

UNITED AIRLINES, INC.,

Defendant.

OPINION & ORDER

Before the Court is Plaintiffs’ Motion for Class Certification and 

Appointment of Counsel. ECF No. 238. Having considered the Motion, 

briefs, and applicable law, the Court finds the Motion should be and is 

hereby GRANTED in part and DENIED in part. Additionally, 

Plaintiffs’ Motion for Reconsideration (ECF No. 241) is DENIED.

BACKGROUND 

Plaintiffs’ claims arise from United’s COVID-19 vaccine mandate. On 

August 6, 2021, United announced that all U.S.-based employees must 

get vaccinated by September 27, 2021. United employees could request 

an accommodation for religious or medical reasons.

In November 2021, United put some unvaccinated flight crew 

employees who received accommodations on indefinite unpaid leave. All 

employees on unpaid leave had the option to apply for alternative 

positions, which varied widely in terms of location, pay, and required 

qualifications. Some applied; others didn’t. Other accommodated

employees were never put on unpaid leave but were instead required to 

wear masks and regularly submit COVID-19 test results. United 

ultimately allowed all employees on unpaid leave to return to work in 

March 2022. According to United’s records, 5,885 employees submitted 

accommodation requests, 4,070 employees were granted an 

accommodation, 2,211 were put on unpaid leave, and 1,078 were 

required to mask and test.

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Plaintiffs sued on September 21, 2021, alleging employment 

discrimination and retaliation on behalf of themselves and other 

similarly situated employees. Plaintiffs say United violated the 

Americans with Disabilities Act (“ADA”) and Title VII of the Civil Rights 

Act of 1964 (“Title VII”) by refusing to provide reasonable medical and 

religious accommodations. After two years, an appeal to the Fifth 

Circuit, and hundreds of filings, Plaintiffs filed the instant Motion for 

Class Certification and Appointment of Counsel. Plaintiffs ask the Court 

to certify the following classes:

1. Rule 23(b)(2) Class: “All individuals who submitted a request for 

a reasonable accommodation from United’s COVID-19 vaccine 

mandate due to a sincerely held religious belief or medical 

disability and then faced the choice of: abandoning their religious 

beliefs or medical needs (i.e., get vaccinated); accepting indefinite 

leave; or being fired or otherwise separated.” 

2. Rule 23(b)(3) Masking-and-Testing Subclass: “[A]ll employees 

United deemed non-customer-facing who received an 

accommodation due to a sincerely held religious belief or medical 

disability and were subject to the purposely punitive maskingand-testing accommodation.” 

3. Rule 23(b)(3) Unpaid Leave Subclass: “[A]ll employees United 

deemed customer facing who received an accommodation due to a 

sincerely held religious belief or medical disability and who were 

put on unpaid leave.” 

ECF No. 238 at 23–24 (cleaned up). 

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LEGAL STANDARD

Class actions are “an exception to the usual rule that litigation is 

conducted by and on behalf of the individual named parties only.” WalMart Stores, Inc. v. Dukes, 564 U.S. 338, 348 (2011) (citation omitted). 

Federal Rule of Civil Procedure 23 controls whether this limited 

exception applies. A party seeking class certification thus “bear[s] the 

burden of proof to establish that the proposed class satisfies the 

requirements of Rule 23.” M.D. ex rel. Stukenberg v. Perry, 675 F.3d 832, 

837 (5th Cir. 2012). A plaintiff “must affirmatively demonstrate his 

compliance with the Rule—that is, he must be prepared to prove that 

there are in fact sufficiently numerous parties, common questions of law 

or fact, and so on.” Chavez v. Plan Benefit Servs., Inc., 957 F.3d 542, 545–

46 (5th Cir. 2020) (internal quotations omitted).

Given the extraordinary nature of class actions, Rule 23 requires a 

“rigorous analysis.” Id. Rule 23 requires courts “to probe behind the 

pleadings before coming to rest on the certification question.” Wal-Mart, 

564 U.S. at 350–51. The Court must “understand the claims, defenses, 

relevant facts, and applicable substantive law to make a meaningful 

determination. If some of the determinations cannot be made without a 

look at the facts, then the judge must undertake that investigation.”

Chavez, 957 F.3d at 546. The Court must then “detail with specificity” 

the reasons for its conclusions, “explain and apply the substantive law 

governing the plaintiffs’ claims to the relevant facts and defenses,” and 

“articulat[e] why the issues are [or are not] fit for class wide resolution.”

Id. This is not a rubber-stamp procedure. See Greathouse v. Cap. Plus 

Fin., LLC, No. 4:22-CV-0686-P, 2023 WL 5746927, at *3 (N.D. Tex. Sept. 

6, 2023) (Pittman, J.). “[T]he district court maintains great discretion in 

certifying and managing a class action.” See Mullen v. Treasure Chest 

Casino, LLC, 186 F.3d 620, 624 (5th Cir. 1999) (citing Montelongo v. 

Meese, 803 F.2d 1341, 1351 (5th Cir. 1986)).

This arduous process exists because “certification can coerce a 

defendant into settling on highly disadvantageous terms regardless of 

the merits of the suit.” Id. And further, after certifying a class, any 

judgment binds absent class members forever. See Richardson v. Wells 

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Fargo Bank, N.A., 839 F.3d 442, 454 (5th Cir. 2016). Thus, the “existence 

of a class fundamentally alters the rights of present and absent 

members.” Chavez, 957 F.3d at 547.

ANALYSIS

Plaintiffs ask the Court to certify a Rule 23(b)(2) class comprised of 

all employees who requested an accommodation, as well as two Rule 

23(b)(3) subclasses comprised of all employees put on unpaid leave (the 

“Unpaid Leave Subclass”) and all employees who had to mask and test 

(the “Masking-and-Testing Subclass”). See ECF No. 238 at 23–24. To 

certify any of these classes, the Court must find the class (1) is 

ascertainable, (2) satisfies Rule 23(a)’s prerequisite requirements, and 

(3) satisfies the specific requirements of either Rule 23(b)(2) or Rule 

23(b)(3). 

First, the Court finds that the Rule 23(b)(2) Class: (1) satisfies the 

ascertainability requirement; (2) does not satisfy all Rule 23(a) 

prerequisite requirements; and (3) does not satisfy Rule 23(b)(2)’s 

specific requirements. Second, the Court finds that the Masking-andTesting Subclass: (1) satisfies the ascertainability requirement; (2) does 

not satisfy all Rule 23(a) prerequisite requirements; and (3) does not

satisfy Rule 23(b)(3)’s specific requirements. Third, the Court finds that 

the Unpaid Leave Subclass: (1) satisfies the ascertainability 

requirement; (2) satisfies all Rule 23(a) prerequisite requirements with 

respect to the Title VII claims; and (3) satisfies Rule 23(b)(3)’s specific 

requirements with respect to the Title VII claims. Thus, the Court will 

not certify the 23(b)(2) Class or the 23(b)(3) Masking-and-Testing 

Subclass. But the Court will certify a class of all employees United 

deemed “customer-facing” who received an accommodation due to a 

sincerely held religious belief and who were put on unpaid leave. For 

these reasons, the Court will GRANT in part and DENY in part

Plaintiffs’ Motion for Class Certification and Appointment of Counsel 

(ECF No. 238). 

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I. Ascertainability

The Fifth Circuit has articulated an “implicit ‘ascertainability’ 

requirement” for Rule 23 class certification. In re Deepwater Horizon, 

739 F.3d 790, 821 (5th Cir. 2014); see also John v. Nat’l Sec. Fire & Cas. 

Co., 501 F.3d 443, 445 (5th Cir. 2007) (“The existence of an ascertainable 

class of persons to be represented by the proposed class representative 

is an implied prerequisite of Federal Rule of Civil Procedure 23.”). “In 

order to maintain a class action, the class sought to be represented must 

be adequately defined and clearly ascertainable.” Union Asset Mgmt. 

Holding A.G. v. Dell, Inc., 669 F.3d 632, 639 (5th Cir. 2012) (cleaned up).

Plaintiffs argue the proposed classes are ascertainable because 

United has the records necessary to identify each class member. See 

ECF No. 238 at 24. The Court agrees, and United does not dispute that 

this requirement is met. See ECF No. 246 at 14–31. The threshold 

requirement for membership in the 23(b)(2) Class is that the class 

member requested an accommodation. United has detailed records of 

employees who submitted an accommodation request. See ECF No. 246 

at 8. United’s records can also show which employees were put on 

unpaid leave or were subject to United’s masking-and-testing protocol, 

relevant for the proposed 23(b)(3) subclasses. See id. Thus, the proposed 

classes are ascertainable. The Court now turns to Rule 23(a)’s 

prerequisite requirements.

II. Rule 23(a) Prerequisite Requirements

Rule 23(a) prescribes four prerequisites for class certification: (1) 

that the class is so numerous that joinder of all members is 

impracticable (“numerosity”); (2) that there are questions of law or fact 

common to the class (“commonality”); (3) that the claims and defenses of 

the parties are typical of the claims or defenses of the class (“typicality”); 

and (4) that the representative parties will fairly and adequately protect 

the interests of the class (“adequacy of representation”). FED. R. CIV. P.

23(a); see also Angell v. GEICO Advantage Ins. Co., 67 F.4th 727, 736 

(5th Cir. 2023). The Court addresses each below.

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A. Numerosity

Rule 23(a)(1) requires that “the class is so numerous that joinder of 

all members is impracticable.” FED. R. CIV. P. 23(a)(1). To meet this 

standard, a plaintiff “must ordinarily demonstrate some evidence or 

reasonable estimate of the number of purported class 

members.” Zeidman v. J. Ray McDermott & Co., Inc., 651 F.2d 1030, 

1038 (5th Cir. 1981).

Plaintiffs meet this standard. Plaintiffs estimate that more than 

5,000 accommodation requests were submitted and nearly 2,300 were 

approved. See ECF No. 239 at 25. Of the 2,300 employees whose 

accommodation requests were approved, Plaintiffs estimate that over 

1,000 were put on indefinite unpaid leave and at least 800 were required 

to mask and test. United’s records show that 5,885 accommodation 

requests were submitted, 4,070 employees were granted an 

accommodation, 2,211 were put on unpaid leave, and 1,078 were 

required to mask and test. See ECF No. 246 at 8. Thus, it’s clear that 

the classes are sufficiently numerous—each containing hundreds or 

thousands of class members. See Mullen, 186 F.3d at 624 (a class size of 

100 to 150 members “is within the range that generally satisfies the 

numerosity requirement”). The Court next addresses Rule 23(a)’s 

commonality requirement. 

B. Commonality

Commonality requires “questions of law or fact common to the class.”

FED. R. CIV. P. 23(a)(2). A common question must be “of such a nature 

that it is capable of classwide resolution—which means the

determination of its truth or falsity will resolve an issue that is central 

to the validity of each one of the claims in one stroke.” Stukenberg, 675 

F.3d at 834. This serves the ultimate purpose of the class action 

procedure: efficiency. If every individual plaintiff requires his or her own 

in-depth factual analysis, the purpose of the class action is defeated—

rendering the litigation unruly and inefficient. See id. 

Because the commonality test focuses on issues that are “central to 

the validity of each one of the claims,” courts must analyze commonality 

through the lens of “the elements of the underlying cause of action.”

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Flecha v. Medicredit, Inc., 946 F.3d 762, 766–67 (5th Cir. 2020). The 

Court will discuss the proposed Rule 23(b)(2) Class, the Masking-andTesting Subclass, and the Unpaid Leave Subclass separately. 

1. Rule 23(b)(2) Class

As an initial matter, the Court notes that commonality is not, as 

Plaintiffs represent, a low bar. Plaintiffs argue that “the test for 

commonality is not demanding,” and the bar is “not particularly high.” 

See ECF No. 256 at 6, 9. Not so. Before the Supreme Court’s decision in 

Wal-Mart v. Dukes, the Fifth Circuit had indeed held “the commonality 

hurdle is not particularly high.” Smith v. Texaco, Inc., 263 F.3d 394, 405 

(5th Cir. 2001), opinion withdrawn, cause dismissed, 281 F.3d 477 (5th 

Cir. 2002) (internal citation omitted); see also James v. City of Dall., 254 

F.3d 551, 570 (5th Cir. 2001) (“The test for commonality is not 

demanding.”). Pre-Walmart, commonality was met “where there is at 

least one issue, the resolution of which will affect all or a significant 

number of the putative class members.” Smith, 263 F.3d at 405. Thus, 

prior Fifth Circuit caselaw held “the interests and claims of the various 

plaintiffs need not be identical,” and “the fact that some of the Plaintiffs 

may have different claims, or claims that may require some 

individualized analysis, is not fatal to commonality.” Stukenberg, 675 

F.3d at 839–40. 

But in Wal-Mart, the Supreme Court held all class members’ claims 

must depend on a common issue of law or fact the determination of 

which “will resolve an issue that is central to the validity of each one of 

the [class members’] claims in one stroke.” Wal-Mart, 564 U.S. at 350. 

Accordingly, the Fifth Circuit observed in Stukenberg that “the WalMart decision [] heightened the standards for establishing commonality 

under Rule 23(a)(2).” 675 F.3d at 839. In vacating the district court’s 

class certification, the court in Stukenberg explained: “the district court 

relied, in large part, on this circuit’s pre-Wal-Mart case law finding that 

‘[t]he test for commonality is not demanding.’” Id. (citation omitted). The 

court explained that post-Wal-Mart, commonality can no longer be 

satisfied if the interests, claims, and injuries of the plaintiffs are varied. 

Rather, “commonality requires the plaintiff to demonstrate that the 

class members ‘have suffered the same injury.’” Id. at 840 (emphasis 

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added) (citing Wal-Mart, 564 U.S. at 350).1 In the present case, this is a 

distinction with a difference. 

a. The Rule 23(b)(2) Class members have different injuries.

Plaintiffs’ proposed Rule 23(b)(2) Class includes everyone who sought 

an accommodation based on a sincerely held religious belief or medical 

disability. See ECF No. 238 at 23. Plaintiffs theorize that United’s 

unpaid leave policy forced employees to choose between “abandoning 

their religious beliefs or medical needs,” (in other words, choosing to get 

vaccinated), “accepting unpaid leave” (even though many employees 

were never put on unpaid leave), or “being fired or otherwise separated” 

(if they refused the vaccine without an accommodation). Id. The “glue” 

holding these injuries together is the idea that United “operated under 

a general policy of discrimination through its accommodation process 

and the accommodations it provided to employees.” Id. at 27. And 

Plaintiffs propose two primary common questions: (1) “whether United 

violated the law with its intentionally harsh masking-and-testing 

accommodation;” and (2) “whether universal unpaid leave is a lawful 

accommodation.” Id. 

For the first question, Plaintiffs argue that “determining [whether] 

United’s harsh masking-and-testing accommodation was unlawful will 

resolve additional claims brought by a large part of the class.” Id. If the 

Court applied pre-Wal-Mart caselaw, this question might suffice. See 

1Notably, Plaintiffs misquote a footnote parenthetical in In re Rodriguez for 

the proposition that “commonality exists even when ‘Plaintiffs may have 

different claims, or claims that may require some individualized analysis.’” 

ECF No. 256 at 6 (citing In re Rodriguez, 695 F.3d 360, 367 n.9 (5th Cir. 2012)). 

Quite the opposite, the parenthetical in Rodriguez correctly notes:

[C]ontrary to prior Fifth Circuit caselaw that “the fact that some of 

the Plaintiffs may have different claims, or claims that may require 

some individualized analysis, is not fatal to commonality,” the 

Supreme Court held in Wal–Mart v. Dukes, that “commonality 

requires the plaintiff to demonstrate that the class members have 

suffered the same injury.”

695 F.3d 360, 367 n.9 (5th Cir. 2012) (cleaned up). In other words, Rodriguez 

observes the exact opposite proposition—post-Wal-Mart, commonality does not 

exist when plaintiffs have different claims or claims that require 

individualized analysis. Instead, all class members must have the same injury. 

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Stukenberg, 675 F.3d at 839–840 (“Before Wal-Mart, . . . the commonality

test [was] met when there is at least one issue whose resolution will 

affect all or a significant number of the putative class members.” 

(cleaned up) (emphasis added)). But post-Wal-Mart, commonality is met 

when an issue that is central to the validity of each one of the class 

members’ claims can be resolved in one stroke. See Wal-Mart, 564 U.S. 

at 350. Resolution of the masking-and-testing issue does no such thing, 

and thus, this question is not common to the class.

For the second question, Plaintiffs argue a determination that 

indefinite unpaid leave was unlawful “will resolve claims across the 

board.” ECF No. 256 at 28 (“In all, the legality of United’s universal and 

punitive accommodations is a common question that can be resolved on 

a classwide basis.”). The first and most obvious issue with this theory is 

that not all employees in the Rule 23(b)(2) Class were put on unpaid 

leave. Thus, any determination of legality vis-à-vis unpaid leave would 

only resolve “in one stroke” the claims of the Unpaid Leave Subclass, not 

the entire Rule 23(b)(2) Class. For instance, a determination that unpaid 

leave was unlawful does not further the claims of those employees who 

masked and tested, worked remotely, changed jobs, or decided to get 

vaccinated—all of whom are part of the proposed Rule 23(b)(2) Class. 

Because not all Plaintiffs in the Rule 23(b)(2) Class “have suffered the 

same injury,” the proposed class does not satisfy commonality. 

Stukenberg, 675 F.3d at 840 (citing Wal-Mart, 564 U.S. at 350). It is not 

enough that Plaintiffs allege they “all suffered a violation of the same 

provision of law.” Wal-Mart, 564 U.S. at 350. 

But Plaintiffs don’t even allege that much, as the Rule 23(b)(2) Class

includes claims under both Title VII (religious discrimination) and the 

ADA (disability discrimination). Because the Court must analyze 

Plaintiffs’ common question through the lens of “the elements of the 

underlying cause of action,” Flecha, 946 F.3d at 766–67, the Court will 

briefly discuss the elements needed to prove United’s unpaid leave policy 

was unlawful.

With regard to religious discrimination, courts analyze a Title VII 

claim for failure to accommodate under a burden-shifting framework 

akin to that in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).

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See Davis v. Fort Bend Cnty., 765 F.3d 480, 485 (5th Cir. 2014). “The 

employee must first establish a prima facie case of religious 

discrimination.” Id. (citing Antoine v. First Student, Inc., 713 F.3d 824, 

831 (5th Cir. 2013)). To do so, a plaintiff must show: (1) they held bona 

fide religious beliefs, (2) the belief conflicted with a requirement of 

employment, (3) the employer was informed of the belief, and (4) they 

suffered an adverse employment action for failing to comply with the 

conflicting requirement. See id. If a plaintiff makes out a prima facie 

case, the burden shifts to the defendant to show either: (1) that it 

reasonably accommodated the employee; or (2) that it was unable to do 

so without undue hardship. See id. 

For the moment, the Court focuses on the fourth element of the prima 

facie case: adverse action. The alleged adverse actions vary among the 

Rule 23(b)(2) Class—some were put on unpaid leave, some were 

required to mask and test, some changed jobs, and others decided to get 

vaccinated. And the lawfulness of United’s unpaid leave policy cannot 

be determined across the proposed class without reference to a specific 

adverse employment action. Because the alleged adverse actions differ 

within the proposed class, all putative class members have not suffered 

the same injury and their claims cannot be productively litigated at 

once.2 Wal-Mart, 564 U.S. at 350. 

Further, even if all Rule 23(b)(2) Class members could establish a 

prima facie case of religious discrimination, the burden would shift to 

United to show that the accommodation was reasonable. See Davis, 765 

F.3d at 485. A jury could find, for example, that United’s masking and 

testing protocol was a reasonable accommodation, but indefinite unpaid 

leave was not. This further suggests the class members’ claims are not 

conducive to class-action litigation. See Wal-Mart, 564 U.S. at 350.

The same is true for the ADA claims. “To prevail on an ADA failureto-accommodate claim, a plaintiff must show that: ‘(1) the plaintiff is a 

qualified individual with a disability; (2) the disability and its 

2The Court has already rejected Plaintiffs’ contention that United’s initial 

decision to put all unvaccinated employees on unpaid leave was itself an 

adverse action, as that decision was never carried out. See ECF No. 231 at 8.

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consequential limitations were known by the covered employer; and (3) 

the employer failed to make reasonable accommodations for such known 

limitations.’” Milteer v. Navarro Cnty., Tex., 652 F. Supp. 3d 754, 762 

(N.D. Tex. 2023) (Fitzwater, J.) (citing Feist v. La., Dep’t of Just., Off. of 

the Atty. Gen., 730 F.3d 450, 452 (5th Cir. 2013)). The reasonableness of 

United’s accommodations under the ADA cannot be determined on a 

class-wide basis because United did not provide the same 

accommodation to all class members. Nor can the factfinder determine 

in one stroke whether each class member had a qualifying disability 

within the meaning of the ADA. See infra, Part II(B)(3)(b). Accordingly, 

the lawfulness of United’s accommodations under the ADA cannot be 

determined on a class-wide basis.

For these reasons, the Court finds Plaintiffs’ proposed common 

questions do not generate common answers for the Rule 23(b)(2) Class.

And the Court finds no other questions common to the Rule 23(b)(2) 

Class that would resolve an issue central to the validity of each class 

member’s claim in one stroke. 

b. A “general policy of discrimination” does not hold together 

the Rule 23(b)(2) Class members’ injuries.

Plaintiffs strain to argue the above injuries can be tied together 

because they arise from the same accommodation policy. Borrowing 

language from Wal-Mart, “a general policy of discrimination,” they 

argue, demonstrates commonality. ECF No. 256 at 26 (citing Wal-Mart, 

564 U.S. at 353). But examination of Wal-Mart reveals that “a general 

policy of discrimination” cannot tie together the injuries at issue here. 

In Wal-Mart, three named plaintiffs—who sought to certify a class of 

1.5 million employees—alleged that Wal-Mart discriminated against 

them based on sex by refusing to hire and promote women. See WalMart, 564 U.S. at 343. The plaintiffs alleged “the discrimination to 

which they have been subjected is common to all Wal-Mart’s female 

employees,” and a strong and uniform corporate culture permits bias 

against women to, “perhaps subconsciously,” infect the discretionary 

decision-making of each one of Wal-Mart’s thousands of managers. Id. 

at 345. Thus, the plaintiffs claimed that “every woman at the company 

[is] the victim of one common discriminatory practice.” Id. The plaintiffs 

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sought to certify a class of people across many facilities nationwide, 

some of whom were wrongfully denied promotions and others who were 

wrongfully denied jobs.

In addressing commonality, the Supreme Court explained there is a 

conceptual gap between (1) an individual’s claim that they have been 

discriminated against, and (2) “the existence of a class of persons who 

have suffered the same injury as that individual, such that the 

individual’s claim and the class claims will share common questions of 

law or fact.” Id. at 353. To bridge this gap, the Supreme Court theorized 

that “significant proof that an employer operated under a general policy 

of discrimination conceivably could justify a class of both applicants and 

employees if the discrimination manifested itself in hiring and 

promotion practices in the same general fashion, such as through 

entirely subjective decisionmaking processes.” Id. In other words, if WalMart had a company-wide policy of discriminating against women, then 

plaintiffs across the country—whether they were passed over for a 

promotion or turned down for a job—could point to a single, companywide policy as the common answer to the question: “why was I 

disfavored?” Id. at 352–353.

Thus, a class can demonstrate commonality by identifying a “general 

policy of discrimination.” See id. It is not an alternative commonality 

analysis, under which a court may certify a class of varied injuries. 

Crucially, to satisfy the commonality requirement, a plaintiff must 

always show “the existence of a class of persons who have suffered the 

same injury as that individual, such that the individual’s claim and the 

class claims will share common questions of law or fact.” Id. at 353. WalMart did not change this requirement; it simply noted an identifiable 

policy may serve as a common denominator that satisfies the inquiry. 

Here, Plaintiffs take this to mean that general discussions of 

United’s corporate culture, led by CEO Scott Kirby, can tie together the 

Rule 23(b)(2) Class’s various claims and injuries. As Plaintiffs see 

things, United’s disparate accommodation decisions “were enacted by 

the same officials in defendant’s central office [and] they affected the 

class as a whole.” See ECF No. 256 at 34 (cleaned up); see also id. at 26

(“[T]he ‘glue’ holding the claims together here is [] United’s ‘general 

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policy’ of disdain for anyone who dared not march in lockstep with its 

vaccine mandate.”).

Review of cases applying Wal-Mart to certify a class undermines 

Plaintiffs’ position. In the few cases that have done so, the respective 

courts identified policies that were facially discriminatory or otherwise 

illegal in every case, as opposed to a policy that might be illegal as 

applied to certain individuals. Indeed, the two out-of-circuit cases on 

which Plaintiffs rely make this clear, as both suggest a general policy of 

discrimination cannot justify class certification when the proposed class 

members have different injuries. 

First, in Sughrim v. New York, a group of correctional officers sought 

to certify a class for violations of Title VII, claiming that the prison 

system’s accommodation policies failed to accommodate their dress and 

grooming needs. Sughrim v. New York, No. 19CV7977RASDA, 2023 WL 

5713191, at *26 (S.D.N.Y. Sept. 5, 2023) (Abrams, J.). The plaintiffs 

alleged the New York State Department of Corrections and Community 

Supervision (“DOCCS”) treated different religious practices differently, 

“granting religious accommodations for members of some faiths but 

denying accommodations to others.” Id. The common questions in 

Sughrim were: (1) “whether DOCCS denied officers’ applications absent 

a finding of undue hardship,” and (2) “whether DOCCS had a practice of 

denying applications based on the tenets of officers’ faiths.” Id. DOCCS 

argued the plaintiffs did not satisfy commonality because they were 

members of different religions and had “‘lumped’ together ‘Pagan, 

Heathen, Odinist, Asatru, Forn Sidr, and other variations of Norse 

Pagan religious traditions,’ defeating commonality.” Id. The court held 

that the fact the plaintiffs came from different religious traditions did

not undermine commonality—all plaintiffs “challenge central and 

systemic failures of Defendants’ religious accommodation policies as 

they affect the class as a whole.” Id. at *24–25.

Plaintiffs ask the Court to view the Rule 23(b)(2) Class not as “a 

series of individualized inquiries,” but as a challenge to United’s central 

and systemic failure to reasonably accommodate its employee’s religious 

beliefs and medical conditions. Plaintiffs cite Sughrim for the 

proposition that failure-to-accommodate claims can be certified as a 

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class “where, as here, the same officials in defendant’s central office 

decided whether to grant the request,” and the plaintiffs challenge 

“systemic failures of the defendants to comply with Title VII.” See ECF 

No. 238 at 32–33. But Sughrim doesn’t apply here. Crucially, unlike 

here, the plaintiffs in Sughrim suffered the same injury—denial of their 

religious accommodation requests. Sughrim stands for the 

uncontroversial proposition that a defendant’s “general policy of 

discrimination” against multiple religions does not undermine 

commonality when plaintiffs from different religions suffer the same 

injury.

Second, in Holmes v. Godinez, a group of deaf and hard-of-hearing 

inmates brought a putative class action against the Illinois Department 

of Corrections (“IDOC”). 311 F.R.D. 177 (N.D. Ill. 2015). The plaintiffs 

sought to certify a class of deaf and hard-of-hearing inmates who require 

accommodations. They proposed several common questions including, 

among others, “whether IDOC systematically failed to provide class 

members with effective communication and adequate access to its 

programs and services” and “whether IDOC provides class members 

with safe and effective visual notification systems to advise them of 

emergencies.” Id. at 218. Holmes challenged IDOC’s system-wide failure 

to provide accommodations, and the court explained that “[t]his 

litigation will focus on whether IDOC’s policies and procedures are 

illegal as applied to all hearing impaired inmates, and thus will not 

depend on [] intensive individualized analysis.” Id. at 222.

Here, however, the various accommodations provided by United and 

the various injuries alleged make it impossible to determine in one 

stroke whether United’s accommodation policy was illegal as to all 

employees. As noted, while United’s unpaid leave policy may have been 

unlawful, its masking-and-testing protocol may not have been.

Determining the legality of United’s unpaid leave policy does not resolve 

the masking-and-testing claims, and vice versa. It is therefore

impossible to determine that United’s overarching policy was unlawful 

“as applied to all” putative class members in the Rule 23(b)(2) Class. 

Thus, the proposed class does not satisfy commonality. The Court turns 

now to the Rule 23(b)(3) Masking-and-Testing Subclass.

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2. Rule 23(b)(3) Masking-and-Testing Subclass

Plaintiffs ask the Court to certify a subclass consisting of “all 

employees United deemed non-customer-facing who received an 

accommodation due to a sincerely held religious belief or medical 

disability and were subject to the purposely punitive masking-andtesting accommodation.” ECF No. 238 at 23–24 (cleaned up). For the 

reasons below, the Court concludes the Masking-and-Testing Subclass 

does not satisfy commonality either. 

This Court has already held that Plaintiffs who were required to 

mask and test did not suffer a more than de minimis adverse 

employment action. “Employers across the country imposed these 

requirements in response to the COVID-19 pandemic, and trial courts 

should not be in the business of scrutinizing these details of personnel 

management in such extraordinary circumstances.” Sambrano v. United 

Airlines, Inc., No. 4:21-CV-1074-P, 2023 WL 8721437, at *4 (N.D. Tex. 

Dec. 18, 2023) (Pittman, J.). But to the extent the Masking-and-Testing 

Subclass alleges they have suffered a more than de minimis adverse 

action, the nature of the adverse action will necessarily vary. David 

Castillo, for example, complains that United required “that he wear an 

N-95 respirator at all times while at work, eat his meals alone and 

outdoors, and provide regular COVID-19 test results.” ECF No. 156 at 

27. For Mr. Castillo, the masking requirement “limited his ability to 

communicate with colleagues during important maintenance activities.” 

Id. In contrast, Ms. Hamilton alleges that as a result of United’s 

masking requirement, her coworkers harassed her by “spraying Lysol 

into her area making it hard for her to breathe.” Id. at 29. 

Because masking and testing is not, by itself, an adverse action, 

whether an employee in this subclass can make out their prima facie 

case will depend on a fact-specific inquiry. The Supreme Court’s recent 

ruling in Muldrow v. City of St. Louis underscores this point. See ___ 

U.S. ___, 144 S. Ct. 967, 974 (2024) (“To make out a Title VII 

discrimination claim, a[n] [employee] must show some harm respecting 

an identifiable term or condition of employment.” (emphasis added)). 

Whether any individual employee suffered some harm as a result of 

United’s masking-and-testing protocol depends on the facts, but 

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Plaintiffs’ Complaint does not allege that all employees suffered the 

same harm as a result of the protocol.

Accordingly, the Rule 23(b)(3) Masking-and-Testing Subclass suffers 

the same deficiency as the Rule 23(b)(2) Class—all putative class 

members did not suffer the same injury. Some allege that masks made 

it difficult to communicate with coworkers, others allege they 

experienced harassment and difficulty breathing. But, by itself, the 

masking-and-testing requirement won’t cut it. Thus, the Rule 23(b)(3) 

Masking-and-Testing Subclass cannot resolve an issue that is central to 

the validity of each class member’s claim in one stroke, and it fails the 

commonality requirement accordingly. 

3. Rule 23(b)(3) Unpaid Leave Subclass

Plaintiffs also ask the Court to certify a Rule 23(b)(3) subclass 

consisting of “all employees United deemed customer facing who 

received an accommodation due to a sincerely held religious belief or 

medical disability and who were put on unpaid leave.” ECF No. 238 at 

23–24 (cleaned up). Unlike the Rule 23(b)(2) Class and the Rule 23(b)(3) 

Masking-and-Testing Subclass, all employees who were put on 

indefinite unpaid leave suffered the same injury. Thus, a class-wide 

proceeding could generate common answers for this Subclass—at least, 

for the Title VII claims. 

For the Unpaid Leave Subclass, United argues five issues require 

individualized assessment, precluding commonality: (1) whether the 

Title VII class members’ religious beliefs were sincere; (2) whether the 

ADA class members had a qualifying disability; (3) whether the unpaid 

leave accommodation was reasonable; (4) whether the class members 

suffered an adverse action; and (5) whether United would incur undue 

hardship in providing an alternative accommodation. The Court agrees 

on the second point. But on all others, the Court concludes that these 

issues do not undermine commonality.

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a. The sincerity issue does not undermine commonality.

For class members bringing claims for religious discrimination, 

United argues that the sincerity of religious beliefs is an individualized 

inquiry that precludes class certification. The Court disagrees. As an 

initial matter, the sincerity of a plaintiff’s religious belief is not an 

exacting inquiry. See Burwell v. Hobby Lobby Stores, Inc., 573 U.S. 682, 

725 (2014) (in evaluating sincerity, “[t]he Court’s ‘narrow function . . . is 

to determine’ whether the plaintiffs’ [asserted religious belief] reflects 

‘an honest conviction’”); Moussazadeh v. Tex. Dep’t of Crim. Just., 703 

F.3d 781, 791 (5th Cir. 2012) (“[s]incerity is generally presumed or easily 

established” and any inquiry “must be handled with a light touch, or 

judicial shyness”). It’s true that a person’s religious beliefs are deeply 

individualized and personal, but “the contours of those beliefs are purely 

objective.” DeOtte v. Azar, 332 F.R.D. 188, 197 (N.D. Tex. 2019) 

(O’Connor, J.). And the Court “need not—indeed, may not—delve into 

each individual’s [] state of mind.” Id. Courts have few occasions to 

conduct this part of the inquiry, as “the sincerity of a religious belief is 

not often challenged.” Moussazadeh, 703 F.3d at 791. But when courts 

in the Fifth Circuit have analyzed sincerity, they “have looked to the 

words and actions” of the plaintiff. Id. Here, the words and actions of the 

Unpaid Leave Subclass evince the sincerity of their religious beliefs. 

First, with regard to the employees’ words, the putative class 

members sought a religious exemption in the first place. In doing so, 

employees were required to articulate a religious reason for not 

receiving the vaccine. Employees were also required to submit a letter

from a third party—someone the employee knew firsthand—who would 

attest to the employee’s sincerely held religious belief. See ECF No. 238 

at 14. Because these employees articulated a religious reason for not 

receiving the vaccine and a third-party attested to the sincerity of that

belief, United granted their accommodation requests. Thus, the 

employees’ own words and the words of all attesting third parties 

indicate that the class members had sincere religious objections to the 

vaccine. See U.S. Navy SEALs 1-26 v. Austin, 594 F. Supp. 3d 767, 780 

(N.D. Tex. 2022) (O’Connor, J.), appeal dismissed as moot sub nom., U.S. 

Navy SEALs 1-26 v. Biden, 72 F.4th 666 (5th Cir. 2023) (“[E]veryone 

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eligible for the class has submitted a religious accommodation request, 

and no one may submit that request without a chaplain’s memorandum 

attesting to the applicant’s sincerity. Thus, all potential class members 

have carried their (light) burden of demonstrating their religious beliefs 

are sincere.”).

Second, as to the employees’ actions, the putative class members

chose to accept indefinite unpaid leave rather than get vaccinated—a 

difficult decision that itself evinces the sincerity of their belief. To be 

sure, non-religious beliefs may motivate a person to forego a vaccine and 

accept unpaid leave (e.g., safety concerns). But a decision to accept 

unpaid leave in conjunction with a professed religious objection and a 

third-party attestation to the sincerity of that objection—taken 

together—are sufficient to demonstrate sincerity. See Moussazadeh, 703 

F.3d at 791. Additionally, because the Unpaid Leave Subclass is 

comprised of employees who were put on unpaid leave “due to a sincerely 

held religious belief,” any person who opts into the class further 

contends that they had a sincere religious objection to the vaccine. 

DeOtte, 332 F.R.D. at 197 (“So long as those employers and individuals 

who opt into the proposed classes contend that the contraceptive 

mandate is forbidden by their sincerely held religious beliefs, the Court 

must accept those contentions.”).

United relies heavily on the Fifth Circuit’s decision in Braidwood

Management, Inc. v. EEOC, 70 F.4th 914 (5th Cir. 2023). In Braidwood, 

the plaintiffs sought to certify a class consisting of “all employers that 

oppose homosexual or transgender behavior for sincere religious 

reasons.” Id. at 921. The employer-defendants argued that the 

application of Title VII to these employers would substantially burden 

their exercise of religion, implicating the Religious Freedom Restoration 

Act (“RFRA”). See id. To qualify for RFRA’s protection, an asserted belief 

must be “sincere,” making sincerity a salient issue in Braidwood.3 The 

3United cites Braidwood for the proposition that “the sincerity 

‘determination can be made only on a case-by-case basis and not at [a higher] 

level of abstraction at the class-certification stage.’” ECF No. 246 at 16. But 

the court applied this line of reasoning expressly to the employer-defendants’ 

organizations. See Braidwood, 70 F.4th at 935. This issue of whether religion 

plays an important role in an organization is an entirely different and much 

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court held that just because “a review of religious sincerity may not be 

demanding does not mean it is a non-existent requirement or nonessential for Rule 23 purposes.” Braidwood, 70 F.4th at 935. For 

commonality, it is not enough to say that “sincerity does not require an 

exacting review.” Id. 

Here, while sincerity indeed “does not require an exacting review,” 

see id., the Unpaid Leave Subclass would demonstrate sincerity even if 

it did. Viewing the facts of this case holistically, the words and actions 

of members in the Unpaid Leave Subclass demonstrate sincerity. See 

Moussazadeh, 703 F.3d at 791. Motivated by religious beliefs, they opted 

out of a vaccine in the middle of a life-threatening global pandemic. See 

ECF No. 156 at 32–34. They were willing to face the professional and 

social ramifications of seeking a contentious religious accommodation to 

do so. See id. They went through a formal process to seek such 

accommodations. See id. Their religious affiliates and/or members of the 

clergy attested to the sincerity of their believe. See id. And to put their 

money where their mouth was, they accepted unpaid leave to adhere to 

their religious convictions. See id. Now they seek to undergo the arduous 

process of litigation to vindicate those sincere beliefs. In whole and in 

part, these words and actions are not the words and actions of someone 

with insincere religious beliefs. Cf. Wisconsin v. Yoder, 406 U.S. 205, 

216–17 (1972) (examining external behaviors in addition to assertion of 

sincerity to determine religious beliefs of Old Order Amish were 

more exacting inquiry than the sincerity of an employee’s religious beliefs

under Title VII. In the organizational context, courts analyze nine factors, 

including: (1) whether the entity operates for a profit; (2) whether it produces 

a secular product; (3) whether the entity’s articles of incorporation or other 

pertinent documents state a religious purpose; (4) whether it is owned, 

affiliated with or financially supported by a formally religious entity such as a 

church or synagogue; (5) whether a formally religious entity participates in the 

management, for instance by having representatives on the board of trustees;

(6) whether the entity holds itself out to the public as secular or sectarian; (7) 

whether the entity regularly includes prayer or other forms of worship in its 

activities; (8) whether it includes religious instruction in its curriculum, to the 

extent it is an educational institution; and (9) whether its membership is made 

up by coreligionists. LeBoon v. Lancaster Jewish Cmty. Ctr. Ass’n, 503 F.3d 

217, 226 (3d Cir. 2007) (cited in Braidwood, 70 F.4th at 935 n.45). This factintensive and highly-individualized inquiry is inapplicable to the sincerity 

analysis here.

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sufficiently sincere to exempt them from compulsory public-school 

attendance laws); U.S. v. Seeger, 380 U.S. 163, 186 (1965) (examining 

external behaviors in addition to assertion of sincerity to determine nontaxonomized religious beliefs were sufficiently sincere to qualify beliefholder for conscription exemption); Thomas v. Rev. Bd. of Ind. Emp. Sec. 

Div., 450 U.S. 707, 714 (1981) (finding a religious belief was sincere 

despite plaintiff’s inability to “articulate his belief precisely” where he 

explicitly stated he “quit [his job] due to his religious convictions”); 

Moussazadeh, 703 F.3d 781, 791–92 (5th Cir. 2012) (finding deviations 

from religious observance did not undermine asserted sincerity where 

sincerity was shown “though [plaintiff’s] initial claims, his actions while 

[incarcerated], and his continued prosecution of this suit” (emphasis 

added)). Accordingly, Braidwood does not foreclose class certification in 

this case. 

b. The disability issue undermines commonality for Plaintiffs’ 

ADA claims.

The Court now turns to the Unpaid Leave Subclass members’ ADA 

claims. For class members alleging disability discrimination, United 

argues that the existence of a qualifying disability is an individual 

inquiry. On this point, the Court agrees. Unlike the sincerity element of 

a Title VII religious discrimination claim—a light burden which is rarely 

challenged—parties frequently dispute whether an employee has a 

qualifying disability within the meaning of the ADA. 

To prevail on an ADA failure-to-accommodate claim, a plaintiff must 

show: (1) the plaintiff is a qualified individual with a disability; (2) the 

disability and its consequential limitations were known by the covered 

employer; and (3) the employer failed to make reasonable 

accommodations for such known limitations. See Milteer, 652 F. Supp. 

3d at 762 (citing Feist v. La., Dep’t of Just., Off. of the Atty. Gen., 730 

F.3d 450, 452 (5th Cir. 2013)). For the first element, the ADA defines a 

“disability” as (a) a physical or mental impairment that substantially 

limits one or more major life activities, (b) a record of such an 

impairment, or (c) being regarded as having such an impairment. Id. at 

762 (citing 42 U.S.C. § 12102(1)). Thus, the ADA “requires an 

individualized assessment of the impact of the impairment on an 

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individual’s major life activities.” Mueck v. LaGrange Acquisitions, L.P., 

75 F.4th 469, 479 (5th Cir. 2023) (emphasis added). 

Because the disability element requires an individual assessment, 

the Court cannot resolve Plaintiffs’ ADA claims in one stroke. The 

Unpaid Leave Subclass includes employees with an array of disabilities.

Some may qualify and require accommodation under the ADA, others 

may not. See ECF No. 246 at 19. United is entitled to argue that some 

employees who requested accommodations do not have a qualifying 

disability within the meaning of the ADA, and thus, class certification 

for Plaintiffs’ ADA claims is inappropriate. See Chandler v. City of Dall., 

2 F.3d 1385, 1396 (5th Cir. 1993) (determinations “of whether an 

individual is handicapped [are] necessarily individualized inquiries” for 

which “class certification and class relief [are] inappropriate”). 

c. The adverse action issue does not undermine commonality.

United also argues that whether class members suffered an adverse 

action is a question that cannot be resolved on a class-wide basis. The 

Court disagrees. Here, all class members suffered the same adverse 

action—indefinite unpaid leave. As this Court has already noted, 

indefinite unpaid leave is clearly a more than de minimis adverse 

employment action. See ECF No. 231 at 8. And because all employees in 

the proposed subclass were put on unpaid leave, they all suffered the 

same adverse employment action. 

d. The reasonableness issue does not undermine commonality.

Similarly, the reasonableness of United’s indefinite unpaid leave 

accommodation is a question that can be resolved on a class-wide basis. 

It’s true that “whether an accommodation is reasonable is a fact-specific 

inquiry.” ECF No. 231 at 9. However, because the accommodation in this 

case is the same across the proposed class, the only factual differences 

between individual class members are questions of damages. The 

commonality requirement can be satisfied “by an instance of the 

defendant’s injurious conduct, even when the resulting injurious 

effects—the damages—are diverse.” In re Deepwater Horizon, 739 F.3d 

at 810–11. 

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United raises two arguments on reasonableness. First, United 

argues the unpaid leave accommodation was not the same for each class 

member because some employees were able to draw on sick pay, take 

vacation time, or rely on other streams of income. ECF No. 246 at 23. 

Indeed, some employees who were put on unpaid leave may have been 

able to use up their accrued vacation time to offset their losses for some 

time, but that does not prevent class certification. If anything, these 

varying circumstances are likewise a question of damages. And these 

individual circumstances do not change the uniform nature of United’s 

unpaid leave accommodation—employees put on unpaid leave stopped 

receiving their paycheck once they ran out of vacation days. The fact 

that every employees’ financial circumstances are not identical does not 

undermine commonality either. United points out that employees’ 

individual circumstances varied, including their “current financial 

resources,” whether they have “another breadwinner in the family,” or 

their “potential outside earning opportunities during leave.” Id. But 

whether an employee’s spouse also earns an income does not factor into 

the reasonableness of a religious accommodation.

Second, United argues that reasonableness may vary between 

employees because every employee on unpaid leave had the option to 

apply for a non-customer-facing job. United apparently argues that the 

reasonableness of an employee’s accommodation depends on the jobs 

available to that employee, which “varied widely in terms of location, 

pay, qualifications, and the like.” Id. at 11. The Court disagrees. The 

accommodation was the same across the board—all employees in the 

Unpaid Leave Subclass were put on unpaid leave. Having an 

opportunity to apply for (but no guarantee of receiving) a new job does 

not tether the reasonableness inquiry to the jobs an employee might 

have received had they applied. The common question is whether 

United’s unpaid leave accommodation was reasonable. The fact that 

employees could have applied for other jobs may be relevant to the 

reasonableness of the unpaid leave accommodation, but the job offers 

they might have received are not. Such an inquiry would be irrelevant 

and speculative.

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e. The undue hardship issue does not undermine commonality.

Finally, United argues that a factfinder cannot determine—without 

individualized inquiry—whether United would have incurred undue 

hardship in providing an alternative accommodation, such as masking 

and testing for customer-facing employees. See Groff v. DeJoy, 600 U.S. 

447, 468 (2023) (“[U]ndue hardship is shown when a burden is 

substantial in the overall context of an employer’s business.” (quotations 

omitted)). United contends that variations in testing capabilities at 

different airports, different working conditions and risks, differences in 

state law, and the unavailability of reserve crews at certain airports

make a class-wide analysis impossible. ECF No. 246 at 25. The Court 

disagrees. 

As an initial matter, the Court notes that United somehow managed 

to require masking-and-testing for over 1,000 non-customer facing 

employees across the country, overcoming the supposed logistical and 

state law hurdles they now argue preclude class certification. See id. at 

8. Plaintiffs say they will present testimony about the costs of testing, 

“which will address logistics at hub airports and non-hub airports.” ECF 

No. 256 at 12. Plaintiffs also say they will present testimony about “the 

costs of employees taking tests themselves and providing results,” and 

any state laws that may be implicated in such a policy. Id. Indeed, 

United’s two-sentence point on variations in state law refers to some 

state laws “that could be interpreted as requiring the employer to pay 

for COVID-19 testing,” thereby increasing the costs associated with 

testing for employees in those states. See ECF No. 77 at 6. But the 

question of whether United would have incurred a substantial burden 

by paying for some employees’ COVID-19 tests is a question that can be 

resolved class-wide. And again, United managed to make it work for its 

non-customer-facing employees—apparently without incurring undue 

hardship. 

Further, the unavailability of reserve crews at certain airports does 

not create individualized questions of undue hardship. United argues 

that masking and testing at airports without reserve crews would create 

an undue hardship because positive COVID-19 tests would result in 

cancelled flights. See ECF No. 246 at 25. Of course, the risk of 

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unexpected illness was not limited to unvaccinated employees. 

Employees who got the shot could also catch COVID-19 (or the flu), 

resulting in staffing shortages. And increasing the number of available 

employees (i.e., requiring employees to mask and test instead of putting 

everyone on unpaid leave) would alleviate those staffing shortages—not 

exacerbate them. Thus, United’s argument that masking and testing 

could cause staffing shortages is unavailing—especially when United’s 

solution was to prevent its customer-facing staff from working at all. 

Stephen Jones, Why are so many flights being canceled?, BUS. INSIDER 

(Jul. 23, 2022, 4:53 AM), https://www.businessinsider.com/airlines-laborshortage-cancelling-flights-aviation-jobs-market-2022-6 (“Airlines have 

collectively canceled thousands of flights, with labor shortages often 

being blamed.”). Accordingly, the question of whether United would 

have incurred a “burden [that] is substantial in the overall context of 

[its] business” by offering an alternative accommodation is a question 

that is common to the class. See Groff, 600 U.S. at 468.

Of United’s five proposed individualized issues—sincerity, disability, 

reasonableness, adverse action, and undue hardship—one persuades. 

The Court thus finds that the Unpaid Leave Subclass’ Title VII claims 

satisfy commonality, but the ADA claims do not.

* * *

For the above reasons, the Court concludes that the Rule 23(b)(2) 

Class and the Rule 23(b)(3) Masking-and-Testing Subclass fail to satisfy 

commonality. The Rule 23(b)(3) Unpaid Leave Subclass satisfies 

commonality for its Title VII claims, but not its ADA claims. The Court 

now turns to typicality.

C. Typicality

The typicality test concerns three questions: (1) whether other 

members have the same or similar injury; (2) whether the action is based 

on conduct which is not unique to the named plaintiffs; and (3) whether 

other class members have been injured by the same course of conduct. 

Miller v. Grand Canyon Univ., Inc., 540 F. Supp. 3d 625, 634–35 (N.D. 

Tex. 2021) (Pittman, J.) (citations omitted). In short, “class certification 

should not be granted if there is a danger that absent class members 

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will suffer if their representative is preoccupied with defenses unique to 

it.” Id.; Angell v. GEICO Advantage Ins. Co., 67 F.4th 727, 736 (5th Cir. 

2023) (“[T]he critical inquiry is whether the named plaintiff’s claims 

have the same essential characteristics as those of the putative class. If 

the claims arise from a similar course of conduct and share the same 

legal theory, factual differences will not defeat typicality.” (cleaned up)); 

see also Gen. Tel. Co. of Sw. v. Falcon, 457 U.S. 147, 158 n.13 (1982) 

(“The commonality and typicality requirements of Rule 23(a) tend to 

merge.”). Having considered the three typicality questions, the Court 

concludes that the Title VII Unpaid Leave Subclass meets the typicality 

requirement, but the Rule 23(b)(2) Class and the Rule 23(b)(3) Maskingand-Testing Subclass do not. 

First, as discussed above, all members of the Title VII Unpaid Leave 

Subclass suffered the same injury. The named Plaintiff, Genise 

Kincannon, and the other subclass members were all put on unpaid 

leave. This policy was uniformly applied to the entire class. Second, the 

action is based on conduct which is not unique to Ms. Kincannon. 

United’s unpaid leave policy was the same across the board. United’s

uniform application of this policy means that the legal and factual 

questions relevant to Ms. Kincannon are the same as those relevant to 

the other subclass members. Third, for the same reason, all members of 

the Unpaid Leave Subclass have been injured by the same course of 

conduct: they requested religious exemptions from United’s vaccine 

mandate, participated in United’s accommodation process, and were all 

put on unpaid leave. Thus, a determination as to Ms. Kincannon’s claim 

would necessarily resolve the claims of other putative class members. 

See Braidwood, 70 F.4th at 934 n.39. The Title VII Unpaid Leave 

Subclass therefore satisfies typicality. 

However, the proposed Rule 23(b)(2) Class does not. The varied 

harms within the class do not lend themselves to any “typical” claim, 

and none of the named Plaintiffs’ experiences are typical of the entire 

class. Some were put on unpaid leave, some were subject to the maskingand-testing protocol, and others decided to get vaccinated. Thus, there 

is no single plaintiff whose claim the Court could resolve that would in 

turn resolve the claims of all others. See id. Similarly, the Masking and 

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Testing Subclass does not meet the typicality requirement. Since 

masking and testing alone is insufficient to establish an adverse 

employment action, individualized inquiry is necessary to determine the 

nature of the harm suffered. There are no typical claims.

Thus, the Court concludes that the proposed Title VII Unpaid Leave 

Subclass satisfies the typicality requirement because the class 

representative’s claims are typical of the class members’ claims, arise 

from the same course of conduct, and are based on the same legal 

theories. However, the Rule 23(b)(2) Class and the Rule 23(b)(3) 

Masking-and-Testing Subclass do not satisfy typicality.

D. Adequacy of Representation

The final Rule 23(a) prerequisite requirement for certification 

demands that a plaintiff show “the representative parties will fairly and 

adequately protect the interests of the class.” FED. R. CIV. P. 23(a). “Rule 

23(a)’s adequacy requirement encompasses class representatives, their 

counsel, and the relationship between the two.” Stirman v. Exxon Corp., 

280 F.3d 554, 563 (5th Cir. 2002) (citing Berger v. Compaq Comput.

Corp., 257 F.3d 475, 479 (5th Cir. 2001)). “[T]he adequacy requirement 

mandates an inquiry into (1) the zeal and competence of the 

representatives’ counsel and (2) the willingness and ability of the 

representatives to take an active role in and control the litigation and to 

protect the interests of absentees.” Berger, 257 F.3d at 479 (cleaned up) 

(citing Horton v. Goose Creek Indep. Sch. Dist., 690 F.2d 470, 484 (5th 

Cir. 1982)). 

Here, Ms. Kincannon has demonstrated a willingness and ability to 

take an active role in controlling the litigation since its inception. She 

has participated in hearings and mediation, provided written discovery, 

and sat for depositions. See ECF No. 238 at 31. The class representative 

does not have conflicts of interest with other members of the class. 

Likewise, Plaintiffs are represented by competent counsel with 

extensive experience in complex litigation and class actions. See id. 

Indeed, United does not dispute that the class representatives and their 

counsel satisfy this requirement. See ECF No. 246 at 14 (“Rule 23(a) 

requires proof of numerosity, commonality, typicality, and adequacy of 

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representation. In this case, Plaintiffs stumble over two of those four 

elements: commonality and typicality.” (citation omitted)). Accordingly, 

Rule 23(a)’s adequacy-of-representation requirement is satisfied.

* * *

In sum, the Court concludes that the Rule 23(b)(2) Class and the Rule 

23(b)(3) Masking and Testing Subclass do not satisfy Rule 23(a)’s 

requirements, but the Title VII Unpaid Leave Subclass does. 

III. Rule 23(b)(2)-Specific Requirements

Although the Court has already determined the Rule 23(b)(2) Class 

fails the prerequisite commonality and typicality requirements, the

23(b)(2) Class fails for another, independent reason. Even if the 

proposed class satisfied Rule 23(a), Rule 23(b)(2) certification would still 

be inappropriate because Plaintiffs’ request for punitive damages is not 

“incidental” to the requested injunctive relief. 

Certification under Rule 23(b)(2) is appropriate if “the party 

opposing the class has acted or refused to act on grounds generally 

applicable to the class, thereby making appropriate final injunctive 

relief or corresponding declaratory relief with respect to the class as a 

whole.” FED. R. CIV. P. 23(b)(2). In other words, Rule 23(b)(2) 

certification is appropriate when plaintiffs seek injunctive or 

declaratory relief, not monetary damages. But here, Plaintiffs also seek 

monetary relief in the form of punitive damages, backpay, and 

compensatory damages. See ECF No. 238 at 40–41.

The underlying premise of the 23(b)(2) class—that its members 

suffer from a common injury properly addressed by class-wide relief—

“begins to break down when the class seeks to recover back pay or other 

forms of monetary relief to be allocated based on individual injuries.” 

Allison v. Citgo Petrol. Corp., 151 F.3d 402, 413 (5th Cir. 1998). 

Accordingly, certification under Rule 23(b)(2) “does not extend to cases 

in which the appropriate final relief relates exclusively 

or predominantly to money damages.” FED. R. CIV. P. 23 (advisory 

committee notes) (emphasis added) (quoted in Allison, 151 F.3d at 411). 

Instead, monetary relief may be obtained in a Rule 23(b)(2) class action 

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only if “the predominant relief sought is injunctive or declaratory.” 

Allison, 151 F.3d at 411.

The Fifth Circuit has held that “monetary relief predominates in 

(b)(2) class actions unless it is incidental to requested injunctive or 

declaratory relief.” Allison, 151 F.3d at 415 (emphasis added). In 

defining incidental damages, the Fifth Circuit explained: 

Ideally, incidental damages should be only those to which class 

members automatically would be entitled once liability to the 

class (or subclass) as a whole is established. That is, the recovery 

of incidental damages should typically be concomitant with, not 

merely consequential to, class-wide injunctive or declaratory 

relief. Moreover, such damages should at least be capable of 

computation by means of objective standards and not dependent 

in any significant way on the intangible, subjective differences of 

each class member’s circumstances. Liability for incidental 

damages should not require additional hearings to resolve the 

disparate merits of each individual’s case; it should neither 

introduce new and substantial legal or factual issues, nor entail 

complex individualized determinations. Thus, incidental 

damages will, by definition, be more in the nature of a group 

remedy, consistent with the forms of relief intended for (b)(2) class 

actions.

Id. Under this framework, the Court concludes that money damages are 

not incidental to the equitable relief sought by Plaintiffs. 

The reasoning in Allison is instructive on this point. The court in 

Allison had “little trouble affirming the district court’s finding that the 

plaintiffs’ claims for compensatory and punitive damages are not 

sufficiently incidental” to the injunctive relief sought. Id. at 416. In 

Allison, the court began by addressing the plaintiffs’ claims for 

compensatory damages, explaining: “[t]he very nature of these damages, 

compensating plaintiffs for emotional and other intangible injuries, 

necessarily implicates the subjective differences of each plaintiff’s 

circumstances; they are an individual, not class-wide, remedy.” Id. at 

417. Thus, the court held that “compensatory damages under Title VII 

and 42 U.S.C. § 1981 are not incidental to class-wide injunctive or 

declaratory relief for discrimination.” Id. 

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But Plaintiffs say they do not seek backpay and compensatory 

damages for the proposed Rule 23(b)(2) Class. Rather, “they seek 

certification of those claims under (b)(3),” apparently referring to the 

proposed (b)(3) subclasses. ECF No. 256 at 17. Plaintiffs do, however, 

seek punitive damages for the proposed (b)(2) class. See ECF No. 238 at 

37 (“[T]he intangible harm Plaintiffs suffered from this coercive choice 

warrants a two-pronged remedy: (1) an injunction prohibiting United 

from engaging in this conduct again; and (2) a class-wide award of 

incidental (here, punitive) damages . . . .”). Thus, the Court must 

determine whether Plaintiffs’ request for punitive damages is incidental 

to the injunctive relief sought. 

In Allison, “the court assumed—with reservations—that punitive 

damages could be awarded on a classwide basis without individualized 

proof of injury, but emphasized that such damages would be limited to 

claims that an entire class or subclass was subjected to the same 

discriminatory act or series of acts.” Colindres v. QuitFlex Mfg., 235 

F.R.D. 347, 377 (S.D. Tex. 2006) (Rosenthal, J.) (citing Allison, 151 F.3d 

at 417). Even assuming that punitive damages could be awarded on a 

class-wide basis, the court in Allison held that such an award was not 

appropriate in the case at hand because the plaintiffs did not allege that

“each plaintiff was affected by these policies and practices in the same 

way.” See Allison, 151 F.3d at 417. Thus, when plaintiffs ask a court to 

certify both equitable and punitive damages claims under Rule 23(b)(2), 

two questions emerge. See Colindres, 235 F.R.D. at 377. First, can 

punitive damages be assessed without proof of liability to individual 

class members? See id. Second, was each plaintiff affected by the 

challenged policy in the same way? See id.

As to the first question, Allison’s reasoning against a class-wide 

award of punitive damages applies here. The court explained that 

punitive damages in the Title VII context “must be reasonably related 

to the reprehensibility of the defendant’s conduct and to the 

compensatory damages awarded to the plaintiffs,” and thus “necessarily 

turn on the recovery of compensatory damages.” Allison, 151 F.3d at 

417–18. “[B]eing dependent on non-incidental compensatory damages, 

punitive damages are also non-incidental—requiring proof of how 

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discrimination was inflicted on each plaintiff, introducing new and 

substantial legal and factual issues, and not being capable of 

computation by reference to objective standards.” Id. at 418.

Plaintiffs here seek punitive damages for their 23(b)(2) Class, but 

they acknowledge that compensatory damages are non-incidental and 

require individualized inquiries not appropriate for (b)(2) certification. 

See ECF No. 256 at 17 (“Plaintiffs do not seek certification of their claims 

for backpay and compensatory damages under (b)(2), they seek 

certification of those claims under (b)(3), where claims for individualized 

damages are appropriate.”). Like in Allison, because punitive damages 

must be related to the non-incidental compensatory damages awarded, 

punitive damages are likewise non-incidental here.4

As to the second question, even assuming punitive damages could be 

awarded on a class-wide basis in this case, Plaintiffs do not allege that

“each plaintiff [in the 23(b)(2) Class] was affected by these policies and 

practices in the same way.” See ECF No. 238 at 29 (“It is of no moment 

that some Plaintiffs did not experience United’s discrimination in 

exactly the same way.”). Mr. Burk, for example, decided to get 

vaccinated. Ms. Kincannon, on the other hand, was put on unpaid leave. 

Other class members took different jobs, and most were never actually 

put on unpaid leave. Thus, Plaintiffs do not—and cannot—contend that 

each 23(b)(2) Class member was affected by United’s vaccine mandate 

and unpaid leave policy in the same way. Therefore, the Court finds that 

punitive damages are not incidental to the injunctive relief sought, 

rendering (b)(2) certification improper. 

4The Court notes that Plaintiffs, in a footnote, propose that “[i]f the Court 

disagrees” on this point, “it should instead adopt a hybrid approach, certifying 

a (b)(2) class as to the claims for declaratory or injunctive relief, and a (b)(3) 

class as to the claims for monetary relief.” ECF No. 238 at 37 n.29 (quotations 

omitted). But “[t]he Court [in Allison] specifically rejected the possibility of a 

‘hybrid’ class with injunctive relief under Rule 23(b)(2) and damages relief 

under Rule 23(b)(3).” See Colindres, 235 F.R.D. at 370 (quoting Allison, 151 

F.3d at 419).

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IV. Rule 23(b)(3)-Specific Requirements

Rule 23(b)(3) requires that “questions of law or fact common to class 

members predominate over any questions affecting only individual 

members, and that a class action is superior to other available methods 

for fairly and efficiently adjudicating the controversy.” FED. R. CIV. P.

23(b)(3). As explained below, the Court concludes that the proposed 

Unpaid Leave Subclass satisfies both predominance and superiority, but 

the Masking-and-Testing Subclass does not. 

A. Predominance

Factual predominance requires that “proposed classes are 

sufficiently cohesive to warrant adjudication by representation.” Cruson 

v. Jackson Nat’l Life Ins. Co., 954 F.3d 240, 253 (5th Cir. 2020). As with 

commonality and typicality, “the risk of voluminous and individualized 

extrinsic proof defeating predominance runs particularly high where a 

defendant raises substantial affirmative defenses.” Id. at 256. The 

predominance requirement “calls upon courts to give careful scrutiny to 

the relation between common and individual questions in a case,” and is 

a “far more demanding” hurdle than Rule 23(a)’s commonality 

requirement. Prantil v. Arkema Inc., 986 F.3d 570, 576–77 (5th Cir. 

2021). “An individual question is one where members of a proposed class 

will need to present evidence that varies from member to member, while 

a common question is one where the same evidence will suffice for each 

member to make a prima facie showing or the issue is susceptible to 

generalized, class-wide proof.” Tyson Foods, Inc. v. Bouaphakeo, 577 

U.S. 442, 453 (2016) (cleaned up) (emphasis added). As long as 

individual questions will not overwhelm common ones, individualized 

questions will not rule out certification. See Halliburton Co. v. Erica P. 

John Fund, Inc., 573 U.S. 258, 276 (2014).

Here, United argues that Plaintiffs’ 23(b)(3) subclasses fail to satisfy 

predominance due to (1) individualized liability issues and (2) 

individualized damages issues. United devotes one page of its brief to 

the individualized liability issues that may preclude predominance. See 

ECF No. 246 at 38. To fully address potential predominance issues, the 

Court draws on United’s commonality concerns under Rule 23(a). See 

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Prantil, 986 F.3d at 579 (explaining that courts must “respond to the 

defendants’ legitimate protests of individualized issues that could 

preclude class treatment”). The Court will first discuss the elements of 

the Unpaid Leave Subclass’s Title VII claims and their bearing on the 

predominance inquiry. Then, the Court will discuss United’s concerns 

that damages cannot be calculated without individual inquiry. 

1. Liability Issues

Once again, the elements of Plaintiffs’ Title VII claims are: (1) the 

employee had a sincere religious belief, (2) the belief conflicted with a 

requirement of employment, (3) the employer was informed of the belief, 

and (4) the employee suffered an adverse employment action for failing 

to comply with the conflicting requirement. See Davis, 765 F.3d at 485.

If they satisfy that showing, the burden shifts to United to demonstrate 

either (1) that it reasonably accommodated the employee, or (2) that it 

was unable to do so without undue hardship. See id. These questions of 

law are common across the Unpaid Leave Subclass. 

Here, two elements of the prima facie case will clearly be satisfied 

using the same evidence: the class members’ beliefs conflicted with 

United’s vaccine mandate and United was informed of their beliefs. Both 

elements can be demonstrated class-wide based on evidence that the 

class members cleared United’s hurdles for requesting a religious 

accommodation. In so doing, the class members informed United of their 

belief and made a prima facie showing that the belief conflicted with 

United’s vaccine mandate. 

But United’s Response raises four individual-liability issues: (1) the 

sincerity of Plaintiffs’ beliefs, (2) the reasonableness of the 

accommodation, (3) whether Plaintiffs suffered an adverse action, and 

(4) whether United would incur undue hardship in providing an 

alternative accommodation. Although the Court addressed each issue in 

its commonality analysis, the Court will now address the reasons 

common questions predominate with respect to each issue.

First, the words and actions of the unpaid leave class members evince 

a sincerely held religious belief such that Plaintiffs can make a prima 

facie showing with the same evidence. Each class member necessarily

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(1) articulated a religious reason for not getting vaccinated, (2) 

submitted a third-party letter attesting to the sincerity of their religious 

beliefs, (3) chose to accept unpaid leave instead of get vaccinated, and 

(4) opted into the class. See supra, Part II(B)(2)(c). These words and 

actions are sufficient to carry the class members’ light burden of 

demonstrating sincerity. See U.S. Navy SEALs 1-26, 594 F. Supp. 3d at 

780. And because these words and actions are common to each class 

member, the same evidence will suffice for each member to make a 

prima facie showing on sincerity. Specifically, the class members can 

satisfy their burden by demonstrating that United’s accommodation 

process required these words and actions, that they complied with that 

process, and that they were granted an accommodation as a result. 

Thus, common questions predominate with respect to the sincerity of 

the class members’ religious beliefs.

Second, the reasonableness of the unpaid leave accommodation is a 

common question. All class members in the Unpaid Leave Subclass 

received the same accommodation—unpaid leave—and the 

reasonableness of that accommodation will not depend on individual 

inquiries. United argues the unpaid leave accommodation was not the 

same across the class for four reasons: (1) employees who qualified for 

medical leave could use paid sick leave, (2) employees who had prescheduled vacations during the unpaid leave period could be paid for 

that time, (3) some employees may have still been able to pay their bills

even though they lost a paycheck, and (4) all employees had the 

opportunity to apply for a non-customer-facing job. See ECF No. 246 at 

21–23. None persuade. 

For the first and second points, the ability of some employees to offset 

the financial burden of unpaid leave using sick days or vacation days 

has no bearing on the reasonableness of the accommodation. Employees 

stopped receiving their paycheck once they ran out of vacation days, and 

that policy was common to the class. These considerations relate solely 

to damages. United’s third point is even less persuasive, as the 

reasonableness of United’s accommodation does not depend on whether 

an employee earned other income from investments, received financial 

support from family, or had “another breadwinner in the family.” Id. at 

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23. The accommodation was the same across the class, and its 

reasonableness can be determined class-wide.

United also argues that reasonableness varied because employees 

had the opportunity to apply for (but no guarantee of receiving) another 

job at United. Id. at 23. Not so. All employees in the Unpaid Leave 

Subclass received the same accommodation—unpaid leave. And the 

reasonableness of that accommodation is a question common to the 

class. To the extent United allowed employees to apply for another job, 

that fact may indeed be relevant in determining the reasonableness of 

the accommodation. Some employees applied for but did not get offered 

another job, some did not apply at all, and others may have received an 

alternative job offer but decided not to take it. In this instance, a 

factfinder need not speculate about jobs an employee may have received. 

The reasonableness inquiry turns on whether the unpaid leave 

accommodation was reasonable, in light of the fact that qualified 

employees had the option of applying for other jobs. This accommodation 

was the same across the class, and thus, the issue may be determined 

based on generalized, class-wide proof. 

Third, no individualized inquiry is necessary to determine whether 

the class members suffered an adverse employment action. All 

employees were subject to the same adverse action—they were put on 

indefinite unpaid leave. Accordingly, evidence that the class was put on 

unpaid leave—a prerequisite for membership in the class itself—will 

suffice for each class member to make a prima facie showing that they 

suffered an adverse employment action.

Fourth, common questions predominate over individual ones with 

respect to United’s undue hardship defense. United put unvaccinated 

customer-facing employees on unpaid leave, and the question of whether 

it would have incurred undue hardship in offering a different 

accommodation is an issue that is susceptible to generalized, class-wide 

proof. Plaintiffs can present testimony about “the costs of employees 

taking tests themselves and providing results,” and any state laws that 

may be implicated in such a policy. And the parties can present 

testimony “from employees within various work groups” explaining 

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whether “the alternative accommodations Plaintiffs proposed would 

have been feasible.” ECF No. 256 at 12. 

For these reasons, the proposed Rule 23(b)(3) Unpaid Leave Subclass

satisfies the predominance requirement. Common questions of law and 

fact concerning the sincerity of religious beliefs, the reasonableness of 

the unpaid leave accommodation, the occurrence of adverse employment 

actions, and the applicability of the undue hardship defense 

predominate over any individualized issues. Thus, the Court finds that 

the Title VII Unpaid Leave Subclass meets predominance under Rule 

23(b)(3). However, for the reasons stated in the Court’s commonality 

analysis, the Masking-and-Testing Subclass and the ADA claims in the 

Unpaid Leave Subclass require individualized inquiry such that 

common questions do not predominate. The Masking-and-Testing 

Subclass didn’t suffer the same adverse action because masking and 

testing is insufficient by itself. And for the ADA claims, individualized

inquiry is necessary to determine whether each Plaintiff has a 

qualifying disability under the ADA. Thus, the Masking-and-Testing 

Subclass members and the Unpaid Leave Subclass’s ADA members 

cannot satisfy their prima facie showing using the same evidence or 

generalized, class-wide proof. The Court now turns to damages.

2. Damages Issues

United argues that individualized damages issues preclude 

predominance. “Even where plaintiffs seeking class certification show 

that common issues predominate on questions of liability, they must also 

present a damages model ‘establishing that damages are capable of 

measurement on a class-wide basis.’” Cruson, 954 F.3d at 258 (quoting 

Comcast Corp. v. Behrend, 569 U.S. 27, 34 (2013)). The issue of damages 

will defeat predominance “where the calculation of damages is not 

susceptible to a mathematical or formulaic calculation.” Bell Atl. Corp. 

v. AT&T Corp., 339 F.3d 294, 307 (5th Cir. 2003). Having considered the 

damages model proposed by Plaintiffs, the Court concludes that the

calculation of damages is easily susceptible to mathematical calculation

for employees who were put on unpaid leave. 

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Plaintiffs propose a damages model that begins by averaging each 

employee’s past earnings to determine an “average wage rate” for 

calculating backpay during the unpaid leave period. “It is wellestablished in the Fifth Circuit that the trier of fact may rely on a lost 

income stream calculation that is based on an average wage rate, 

particularly if the plaintiff has an inconsistent work history.” Nelson v. 

Cooper T. Smith Stevedoring Co., No. CIV.A. 12-2890, 2013 WL 

4591362, at *1 (E.D. La. Aug. 28, 2013); see also In re Parker Drilling 

Offshore USA LLC, 323 F. App’x 330, 335 (5th Cir. 2009) (explaining 

that lost wages at the time of injury can be calculated by “estimating the 

earnings from past data when earnings data was inconsistent”); Herbert 

v. Wal-Mart Stores, Inc., 911 F.2d 1044, 1050 (5th Cir. 1990) (affirming 

district court’s determination that lost wages can be calculated based on 

Plaintiff’s “earnings record over the previous two years”). This “average 

wage rate” calculation is appropriate here because, as United points out, 

flight crew employees do not have salaries. Their compensation is highly 

variable, driven by personal preferences, available flights, and other 

factors. See ECF No. 246. Courts in this circuit routinely confront this 

issue in calculating backpay, and the average wage rate calculation is 

an easily calculable and well-established method of calculating backpay 

in such instances.

United, however, argues that “the use of averages would, by 

definition, undercompensate some putative class members” and 

overcompensate others. See ECF No. 246 at 40. This argument 

misconstrues Plaintiffs’ damages model. As applied to the Unpaid Leave 

Subclass, Plaintiffs seek to take the average wage rate for each 

individual class member, multiplied by the time each employee was on 

unpaid leave, to determine lost wages during the unpaid leave period. 

This ensures a fair and accurate measure of damages, tailored to each 

employee’s earnings history. Though this necessarily involves some 

individual inquiry—insofar as it hinges on an employee’s past 

earnings—the determination is conducive to mathematical calculation. 

After calculating backpay, Plaintiffs propose a method of calculating 

punitive damages on a class-wide basis “by allowing the factfinder to 

determine an appropriate ratio of punitive to economic damages, which 

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can then be mechanically applied to all members of this subclass.” See 

ECF No. 238 at 41. Such an approach is consistent with prior cases in 

this circuit, in which a ratio or multiplier has been used to assess 

punitive damages. See Cimino v. Raymark Indus., Inc., 151 F.3d 297, 

323 (5th Cir. 1998) (rejecting a challenge to the use of a multiplier in 

determining punitive damages); Jenkins v. Raymark Indus., Inc., 109 

F.R.D. 269, 282 (E.D. Tex. 1985), aff’d, 782 F.2d 468 (5th Cir. 1986)

(holding a punitive award shall be made “by determining the entire 

amount of compensatory damages awarded by trial or settlement” and 

determining the “ratio thereto of each individual’s award”). 

United argues that punitive damages are not capable of class-wide 

proof because they require “proof of how discrimination was inflicted on 

each plaintiff.” See ECF No. 246 at 42. United says this means punitive 

damages must be assessed on an individual basis. United is correct as 

applied Plaintiffs’ proposed 23(b)(2) Class, which is comprised of 

employees who allegedly suffered a wide array of harms. But as applied 

to the Unpaid Leave Subclass’s Title VII claims, all class members 

suffered the same harm—they were put on unpaid leave. Thus, punitive 

damages will not vary with individual circumstances, except in relation 

to the economic loss incurred by an individual class member. If a jury 

finds that United acted “with malice or with reckless indifference,”

Kolstad v. Am. Dental Ass’n, 527 U.S. 526, 534 (1999) (quoting 42 U.S.C. 

§ 1981a(b)(1)), it can award a uniform amount of punitive damages as a 

remedy. Such an award will be proportional to the economic loss 

incurred by individual class members as a result of the unpaid leave 

policy. For that reason, United’s uniform treatment of the Unpaid Leave 

Subclass makes the punitive damages calculation capable of 

mathematical calculation (by determining an appropriate multiplier of 

punitive damages to compensatory damages) should the factfinder 

determine such an award is appropriate. See Cimino, 151 F.3d at 323.

Accordingly, Plaintiffs have demonstrated that their proposed 

damages model for backpay and punitive damages is capable of 

measurement on a class-wide basis using established, mathematical 

methods. The use of an average wage rate to calculate backpay is wellsupported by precedent and is particularly suited to situations where 

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employees’ earnings are highly variable. Additionally, the proposed 

method for determining punitive damages by applying a ratio to 

economic damages is consistent with prior rulings in this circuit and 

ensures a uniform approach across the class. Therefore, the Court finds 

that Plaintiffs’ damages model satisfies the Rule 23(b)(3) predominance 

inquiry with respect to damages.

B. Superiority

“Superiority” requires that a class action is “superior to other 

available methods for fairly and efficiently adjudicating the 

controversy.” FED. R. CIV. P. 23(b)(3). This involves a “fact-specific 

analysis and will vary depending on the circumstances of any given 

case,” Madison v. Chalmette Refin., LLC, 637 F.3d 551, 555 (5th Cir. 

2011). Rule 23(b)(3) contemplates four considerations in determining 

the superiority of a class action vis-à-vis other available methods: (1) the 

class members’ interests in individually controlling the prosecution or 

defense of separate actions, (2) the extent and nature of any litigation 

concerning the controversy already begun by or against class members, 

(3) the desirability or undesirability of concentrating the litigation of the 

claims in the particular forum, and (4) the likely difficulties in managing 

a class action.

As an initial matter, it is clear that one of the primary rationales for 

class treatment—judicial efficiency—is well-served here. The unpaid 

leave class consists of hundreds of employees who requested religious 

accommodations and were put on indefinite unpaid leave. For the 

reasons discussed above, all class members suffered the same injury, 

received the same accommodation, and share common questions of law 

and fact. Requiring courts to manage hundreds of lawsuits addressing 

the same questions and evidence makes little sense. Thus, in this case, 

certification “would promote judicial economy and avoid the wasteful, 

duplicative litigation which would inevitably result if these cases were 

tried individually.” Mullen, 186 F.3d at 627.

United argues that the practical difficulties of managing the 

proposed classes undermine the judicial efficiency of class-wide 

resolution. If the Court were to certify Plaintiffs’ proposed Rule 23(b)(2) 

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and both Rule 23(b)(3) subclasses, the Court would agree. The difficulty 

in managing a Rule 23(b)(2) class consisting of over 6,000 class members 

with varying injuries, accommodations, and causes of action would 

wholly undermine the superiority of the class action mechanism. 

Likewise, a 23(b)(3) class consisting of employees who were required to 

mask and test, each of whom suffered different harms and adverse 

employment actions—harassment, difficulty breathing, lonely lunches, 

excessive Lysol spraying—would be unmanageable and inefficient. The 

class members could not make out a prima facie case of religious 

discrimination without individualized inquiry. Contrast this with a 

class consisting of employees who sought religious accommodations and 

were put on indefinite unpaid leave. All class members suffered the 

same injury, were granted the same accommodation, and assert the 

same cause of action. The same evidence will support each class 

members’ prima facie case of religious discrimination, and the 

reasonableness of the accommodation and undue hardship defense can 

be determined class-wide. Thus, United’s arguments do not persuade 

when it comes to the unpaid leave Title VII class.

“The greater the number of individual issues, the less likely 

superiority can be established.” See Castano v. Am. Tobacco Co., 84 F.3d 

734, 745 (5th Cir. 1996). Naturally, the inverse is also true—claims with 

few or no individual issues lend themselves to class-wide resolution. In 

the preceding section, the Court discussed the common evidence 

relevant to each element of Plaintiffs’ prima facie case. Furthermore, 

United’s reasonableness and undue hardship defenses apply class-wide. 

The reasonableness of the unpaid leave accommodation does not hinge 

on individuals’ financial circumstances or the jobs for which they were 

qualified—thus, such a defense will succeed or fail as to each class 

member on the same evidence. Similarly, United’s undue hardship 

defense is capable of class-wide proof.

Further, the fact that many class members still work at United 

weighs in favor of superiority because “those potential class members 

still employed by [United] might be unwilling to sue individually or join 

a suit for fear of retaliation at their job.” Mullen, 186 F.3d at 625. Indeed, 

another principal function of the class action mechanism is the 

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“vindication of the rights of groups of people who individually would be 

without effective strength to bring their opponents into court at all.”

Amchem Prod., Inc. v. Windsor, 521 U.S. 591, 617 (1997). This includes 

cases where plaintiffs “are vulnerable to reprisals by the defendant due 

to a continuing economic relationship, such as employment.” 2 Wm. B. 

Rubenstein, Newberg and Rubenstein on Class Actions § 4.65 (6th ed. 

2023). Many class members are still employed by United, and thus may 

be dissuaded from suing individually for fear of jeopardizing their 

employment. This is, of course, in addition to the burden and potential 

expense of bringing individual claims against United, who has far more 

time and resources to litigate such matters. 

Lastly, at this point in the litigation, the Court is painfully familiar 

with the law, facts, and applicable defenses in this case, making this 

Court a desirable forum for litigating this action. Ultimately, having 

considered the available methods for fairly and efficiently adjudicating 

the controversy, the Court concludes that a class of employees who 

requested religious accommodations and were put on unpaid leave 

satisfies Rule 23(b)(3)’s superiority requirement.

* * *

In sum, the Court finds that the Plaintiffs’ Motion for Class 

Certification should be GRANTED in part and DENIED in part. The 

proposed Rule 23(b)(2) Class and the Rule 23(b)(3) Masking-and-Testing 

Subclass do not satisfy the commonality and typicality requirements 

under Rule 23(a), nor do they meet the criteria under Rule 23(b). The 

different injuries suffered and the individual questions raised within 

these proposed classes preclude class-wide resolution of their claims.

However, the Court concludes that the Rule 23(b)(3) Unpaid Leave 

Subclass’s Title VII claims meet the criteria for certification. This 

subclass includes all employees United deemed customer-facing who 

received an accommodation due to a sincerely held religious beliefs and 

who were put on unpaid leave. The claims of these employees satisfy the 

commonality and typicality requirements under Rule 23(a), share 

common legal and factual questions that predominate over any 

individual issues, and a class action is the superior method for 

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adjudicating their claims efficiently and fairly. Accordingly, the Court 

appoints Plaintiffs’ counsel as class counsel with Ms. Kincannon as the 

named plaintiff and modifies Plaintiffs’ proposed Unpaid Leave 

Subclass to encompass only the Title VII claims. The Court thus certifies 

a class consisting of all employees United deemed customer-facing who 

received an accommodation due to a sincerely held religious beliefs and 

who were put on unpaid leave. See Braidwood, 70 F.4th at 934. 

(explaining the court “may modify the classes to fit the requirements 

better and should not dismiss an action purely because the proposed 

class definition is too broad”). 

V. Plaintiffs’ Motion for Reconsideration 

Finally, Plaintiffs’ Motion for Reconsideration is also before the 

Court. ECF No. 241. Plaintiffs ask the Court to reconsider its prior order 

granting in part United Motion to Dismiss. Having reviewed the Motion, 

the Court finds that the Motion for Reconsideration should be and is 

hereby DENIED. 

CONCLUSION 

For the reasons stated above, the Court finds that the Plaintiffs’ 

Motion for Class Certification (ECF No. 238) should be GRANTED in 

part and DENIED in part. Additionally, the Court finds that the 

Motion for Reconsideration (ECF No. 241) should be and is hereby 

DENIED. 

SO ORDERED on this 21st day of June 2024. 

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

REGINALEA KEMP,

Plaintiff,

v. No. 4:23-cv-00841-P

REGIONS BANK ET AL.,

Defendants.

ORDER

Before the Court is Plaintiff’s Unopposed Motion for Leave to File 

Second Amended Complaint. ECF No. 18. Having considered the Motion 

and applicable docket entries, the Court GRANTS the Motion.

SO ORDERED on this 18th day of September 2023.

______________________________________________

Mark T. Pittman

UNITED STATED DISTRICT JUDGE

Case 4:21-cv-01074-P Document 263 Filed 06/21/24 Page 41 of 41 PageID 19223