The opinion
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 Preliminary Injunction,
filed August 22, 2021. ECF No. 5. For the following reasons, the Court
will DENY Plaintiffs’ Motion for Preliminary Injunction.
INTRODUCTION
This case is not about the constitutionality or efficacy of vaccine
mandates promulgated by the government or private entities. Instead,
this case focuses on United Airline Inc.’s (“United”) accommodation
policy for employees who were granted religious or medical exemptions
from United’s vaccine mandate. Plaintiffs allege that United failed to
reasonably accommodate exempted employees and that United
retaliated against employees for requesting exemptions.
This Order does not rule on the ultimate merits of this case. Instead,
this Order merely rules on Plaintiffs’ request for the extraordinary
remedy of a preliminary injunction to enjoin United from placing
Plaintiffs, and other similarly situated employees, on unpaid leave. As
detailed below, the Court concludes that the Motion must be denied
because Plaintiffs do not clearly carry their burden to show they would
suffer imminent, irreparable harm absent a preliminary injunction.
FACTUAL & PROCEDURAL BACKGROUND
Plaintiffs are employed by United in a range of different roles. David
Sambrano is an aircraft Captain; Genise Kincannon is a Flight
Attendant; David Castillo is an Aircraft Technician and mechanic;
Kimberly Hamilton is a Station Operations Representative; and Debra
Jennefer Thal Jonas is a Customer Service Representative.1 Am. Compl.
¶¶ 5–9, ECF No. 67. Plaintiffs brought this employment discrimination
and retaliation lawsuit on behalf of themselves and other
similarly-situated employees.2 See id. ¶¶ 1–2.
Plaintiffs’ claims arise from United’s COVID-19 vaccine mandate
policy. Plaintiffs allege United violated Title VII of the Civil Rights Act
of 1964 by refusing to engage in an interactive process, by failing to
provide reasonable religious accommodations, and by retaliating
against Plaintiffs for engaging in a protected activity (i.e., requesting an
exemption). Similarly, Plaintiffs allege United violated the Americans
with Disabilities Act (“ADA”) by failing to provide reasonable medical
accommodations for qualified employees and for retaliating against
those who requested medical exemptions.
On August 6, 2021, United lit the fuse for this lawsuit by announcing
that all its employees would be required to get a COVID-19 vaccine. To
that end, United mandated that its employees must be vaccinated
within five weeks after the Food and Drug Administration (“FDA”)
approved a vaccine, or five weeks after September 20, 2021, whichever
came sooner. TRO Br. at 9, ECF No. 6. Because the FDA approved a
Pfizer COVID-19 vaccine on August 23, 2021, United required its
employees to receive a vaccine by September 27, 2021. Id.
United employees could request an exemption from the mandate for
religious or medical reasons, but not both. Am. Compl. ¶ 43. Captain
Sambrano, Ms. Hamilton, and Ms. Kincannon requested and received
religious exemptions, while Ms. Jonas requested and received a medical
1Plaintiff Seth Turnbough is an aircraft Captain for United. Am. Compl. ¶ 10, ECF
67. Because the Court concluded that it lacked personal jurisdiction over Captain
Turnbough’s claims against United (ECF No. 103), the Court does not include his
claims in the following analysis.
2Plaintiffs filed a Motion to Certify Provisional Class on November 1, 2021. ECF
No. 101. United has not responded to the Motion to Certify as of the date of this Order,
and the Court has thus not ruled on that motion.
exemption.3 Mr. Castillo’s situation is slightly different because he did
not timely submit his exemption request on United’s online system.4
Instead, Mr. Castillo emailed his supervisor after the August 31, 2021
deadline and requested both medical and religious emptions. PI Hr’g Tr.
Vol. II at 89:10–22, ECF No. 92. Mr. Castillo stated that a United human
resources agent said his medical exemption request would be
considered, but his tardy religious exemption request would not. Id.
Overall, United granted approximately 80% of the requests for
religious exemptions and 63% of the requests for medical exemptions
from the vaccine mandate. Id. at 172:4–173:2. United offered these
exempted employees the “accommodation” of indefinite unpaid leave.5
United consistently claimed that this heavy-handed approach was the
only feasible solution for many of its employees, especially flight-crew
members like Captain Sambrano and Ms. Kincannon.6
Accordingly, Plaintiffs filed this lawsuit on September 21, 2021. Pls.’
Compl., ECF No. 1. The Court held a hearing on Plaintiffs’ Motion for
Temporary Restraining Order on September 24, 2021. See Order, ECF
No. 10. At this hearing, the Parties reached an agreement that obviated
the need for the Court to then rule on that motion. See Order Deferring
3Captain Sambrano attempted to request a medical exemption as well, but
United’s online request system forced him to choose one or the other.
4At the Preliminary Injunction Hearing, Mr. Castillo explained the reason for this
delay. PI Hr’g Tr. Vol. II at 88:1–89:19. He explained that United initially required a
“pastor’s note” to accompany employees’ religious exemption requests. Id. Mr. Castillo
is a practicing Buddhist, and thus had no pastor from whom he could obtain such a
note. Id. United later changed this policy so that any third-party could attest to the
requesting employees’ beliefs, but Mr. Castillo explained he did not learn of this change
until after the submission deadline. Id.
5United gave medically-exempted employees the option to use their accumulated
sick-leave pay until it was exhausted, at which point they would be placed on indefinite
unpaid leave. United did not provide religiously-exempted employees with this option.
6United argued at the Preliminary Injunction Hearing that it would roll out an
updated accommodation policy for some non-flight-crew employees, such as Ms.
Hamilton and Ms. Jonas. See ECF No. 93, at 90. For instance, United asserted that
some employees would be given the option to wear a mask and engage in regular
testing as an alternative accommodation to getting the vaccine or indefinite unpaid
leave. Id. As of the date of this Order, however, United has not provided evidence of
this updated accommodation policy.
on Ruling, ECF No. 28. Specifically, the Parties stipulated that United
would temporarily refrain from placing exempted employees on leave for
not complying with United’s vaccine mandate.
The Court then set Plaintiffs’ Motion for Preliminary Injunction for
a hearing on October 8, 2021. Id. The day before that hearing, however,
United filed a Partial Motion to Dismiss, alleging the Court lacked
personal jurisdiction over claims raised by several Plaintiffs against
United. See Mot. to Dismiss, ECF No. 47. To permit Plaintiffs reasonable
time to respond to United’s jurisdictional challenge, the Court set an
expedited briefing scheduling and reset the evidentiary hearing on
Plaintiffs’ Motion for Preliminary Injunction to October 13, 2021. Order
for Expedited Briefing, ECF No. 49.
After the Preliminary Injunction Hearing was reset, on October 12,
2021, the Court issued a Temporary Restraining Order (“TRO”). See
TRO, ECF No. 66. As detailed in the TRO, and further clarified in the
Court’s October 18, 2021 Order, this TRO merely extended the Parties’
stipulated agreement. See TRO and Clarifying Order, ECF Nos. 66, 72.
This TRO was necessary to avoid the risk of irreparable injury and to
maintain the status quo until Could hold a hearing on and resolve
Plaintiffs’ Motion for Preliminary Injunction.
On October 13, 2021, the Court held an evidentiary hearing on the
Motion for Preliminary Injunction. See ECF No. 86. At this two-day
hearing, both Parties admitted exhibits, offered live witness testimony,
cross examined the other Party’s witnesses, and orally presented their
expert witnesses’ opinions.7 The Parties offered competing expert
testimony addressing possible alternative accommodations, and their
views on whether such accommodations were effective and feasible.
7Because United filed its Partial Motion to Dismiss at the eleventh-hour before the
initial Preliminary Injunction Hearing, the Court was forced to reset the hearing to
the following week. See ECF Nos. 47, 49. Because Plaintiffs’ expert witnesses were not
available for the new hearing date, Plaintiffs moved to continue the new hearing date.
ECF No. 50. The Court held a telephonic hearing to address these issues. See EFC No.
53. To avoid potential prejudice, the Court determined that if Plaintiffs’ experts were
unable to attend the rescheduled hearing, both sides would be required to submit their
expert testimony through written declarations or affidavits. See ECF No. 54. Counsel
for the Parties were permitted to orally summarize their experts’ opinion at the
Preliminary Injunction Hearing.
Then, to encourage an amicable resolution of this dispute without
further Court intervention, on October 20, 2021, the Court issued a
Mediation Order. See Med. Order, ECF No. 81. The Mediation Order
appointed Hon. Kent Hance, Chancellor-Emeritus and Hon. Royal
Furgeson (Ret.), Dean-Emeritus as mediators, and required the Parties
to attend a mediation by October 26, 2021. Id. On October 25, 2021, the
Court granted Plaintiffs’ Motion to Extend the TRO to maintain the
status quo while the Parties attended mediation. Order Extending TRO,
ECF No. 95. The Parties filed a Settlement Conference Report informing
the Court that they were unable to reach a settlement at the mediation
and outlining the issues that remained. Joint Med. Report and Supp.,
ECF Nos. 98, 102. Accordingly, Motion for Preliminary Injunction is now
ripe for review. As detailed below, the Court cannot grant the Motion for
Preliminary Injunction because Plaintiffs have not clearly carried their
burden on the second element—irreparable harm.
LEGAL STANDARD
The purpose of a preliminary injunction is to “preserve the status quo
and thus prevent irreparable harm until the respective rights of the
parties can be ascertained during a trial on the merits.” City of Dallas
v. Delta Air Lines, Inc., 847 F.3d 279, 285 (5th Cir. 2017) (citation
omitted). To obtain to a preliminary injunction, the movant must satisfy
each of the following equitable elements: “(1) a substantial likelihood of
success on the merits; (2) a substantial threat of irreparable injury;
(3) the threatened injury to the movant outweighs the threatened harm
to the party sought to be enjoined; and (4) granting the injunctive relief
will not disserve the public interest.” Id. Because a preliminary
injunction is an “extraordinary remedy,” courts should grant them only
if the movant “clearly carries the burden of persuasion on all four
requirements.” Id. Because Plaintiffs do not meet their burden on the
irreparable harm element, the Court analyzes this element alone. See
Roho, Inc. v. Marquis, 902 F.2d 356, 261 (5th Cir. 1990); see also Miller
Pharmacy Servs., LLC v. Amerisource Bergen Drug Corp., No. CV-3:21-
0207, 2021 WL 1095322, at *1 (W.D. La. Feb. 5, 2021) (“If a plaintiff fails
to meet his burden regarding any of the necessary elements, the Court
need not address the other elements necessary for granting a
preliminary injunction.”).
ANALYSIS
A. No Irreparable Harm
To satisfy the “irreparable harm” prong of the preliminary injunction
test, a movant must show an “irreparable injury is likely in the absence
of an injunction.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22
(2008); Pendergest–Holt v. Certain Underwriters at Lloyd’s of London,
600 F.3d 562, 569 (5th Cir. 2010). Generally, “a harm is irreparable
where there is no adequate remedy at law[.]” Janvey v. Alguire, 647 F.3d
585, 600 (5th Cir. 2011). Further, the threatened harm must be “more
than mere speculation.” Id. at 601. Instead, to prevail, the movant must
show “a significant threat of injury from the impending action, that the
injury is imminent, and that money damages would not fully repair the
harm.” Dickey’s Barbecue Rest., Inc. v. GEM Inv. Grp., L.L.C., No. 3:11-
CV-2804-L, 2012 WL 1344352, at *4 (N.D. Tex. Apr. 18, 2012) (quoting
Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th Cir. 1986)). For
example, irreparable harm may exist if a “meaningful decision on the
merits would be impossible without an injunction[.]” Janvey, 647 F.3d
at 600. But when a movant does not establish this element, the Court
must deny the application for preliminary injunction. The Court
analyzes each of Plaintiffs’ theories that attempt to show irreparable
harm will occur without an injunction, but finds each theory wanting.
1. Plaintiffs’ “Impossible Choice” Theory of Irreparable Harm Fails
Plaintiffs first argue that “United has put its religious and disabled
workers in an impossible position—take the COVID-19 vaccine, at the
expense of their religious beliefs [or face indefinite] unpaid leave.” Pls.’
PI Br. at 16, ECF No. 37. Because the vaccine cannot be removed from
their bodies, an individual who chooses to get the shot cannot undo that
choice.8 Plaintiffs argue that acquiescing to United and getting the
vaccine in violation of their beliefs will cause irreparable harm.
8To illustrate this point, Plaintiffs direct the Court to the story of David Lockwood
as an example. Mr. Lockwood requested a religious exemption from the vaccine
mandate, but when faced with the prospect of being placed on unpaid leave, he
“ultimately decided to violate his religious beliefs and acquiesce to United’s coercion.”
This argument, however, conflates the potential harm arising from
United’s accommodation policy with the personal difficulty of deciding
to decline the vaccine. United exempted Plaintiffs from the vaccine
mandate; Plaintiffs were not required to violate their religious beliefs.
United’s employees claimed they faced an impossible choice: get the
vaccine or endure unpaid leave. But they chose the latter. Their dispute
thus centers on United’s response to their choice.
Plaintiffs also argue that United caused them irreparable harm by
“simply forcing them to choose between their livelihood and their right
to live out their faith absent undue hardship from their employer.” Pls.’
PI Br. at 19–20. To support this contention, Plaintiffs cite a recent
Supreme Court case that held “[t]he loss of First Amendment freedoms,
for even minimal periods of time, unquestionably constitutes irreparable
injury.” Roman Catholic Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 67
(2020) (quoting Elrod v. Burns, 427 U.S. 347, 373 (1976) (plurality op.)).
But this authority is inapposite because Plaintiffs do not assert any
First Amendment violations in this action. It is undisputed that United
exempted Plaintiffs from the vaccine mandate. Plaintiffs, therefore,
have not been denied the freedom to exercise their religious beliefs.
Indeed, by declining to receive the vaccination, they have acted in
accordance with their religious beliefs. So, again, Plaintiffs’ grievances
lie with United’s response to their decision.
Plaintiffs nevertheless argue, without citing supporting authority,
that these constitutional protections should apply in the context of
statutory anti-discrimination laws. Pls.’ PI Br. at 20. Courts in other
circuits, however, have rejected similar arguments:
Pls.’ PI Hr’g App’x at App. 26–27. Plaintiffs argue Mr. Lockwood exemplifies how other
employees may respond when faced with the stark realities of indefinite unpaid leave:
these “employees may consider violating their beliefs” by getting the vaccine. See id.
(emphasis added). If they do so, Plaintiffs argue “the harm will be permanent—the
breach of religious belief will already have occurred—and the Court cannot later
fashion a remedy to undo that harm.” Pls.’ PI Br. at 17. But the Court cannot conclude
irreparable harm exists to warrant a preliminary injunction based on Plaintiffs’ “mere
speculation” that others may follow Mr. Lockwood’s lead. See Janvey, 647 F.3d at 601;
see also Friends of Lydia Ann Channel v. U.S. Army Corps of Eng’rs, 701 F. App’x 352,
357 (5th Cir. 2017).
No Plaintiff is being imprisoned and vaccinated against his
or her will . . . . Rather, these Plaintiffs are choosing
whether to comply with a condition of employment, or to
deal with the potential consequences of that choice. Even if
they believe the condition or the consequences are wrong,
the law affords them an avenue of recourse—and that
avenue is not injunctive relief on this record.
Beckerich v. St. Elizabeth Med. Ctr., No. 21-105, 2021 WL 4398027, at
*7 (E.D. Ky. Sept. 24, 2021); see also Harsman v. Cincinnati Children’s
Hosp. Medical Center, No. 1:21-CV-597, 2021 WL 4504245, at *4 (S.D.
Ohio Sept. 30, 2021). The Court likewise declines to elevate statutory
protections from private-company-discrimination to the level of
constitutional protections from government encroachment.
The Court appreciates the difficulty conscientious employees face
when asserting their religious rights. These employees are statutorily
protected from employers’ attempts to discriminate or retaliate against
these employees for living out their religious convictions. But that
difficulty does not demonstrate irreparable harm.
2. Plaintiffs’ Loss of Seniority Theory of Irreparable Harm Fails
Plaintiffs next argue they would not accrue seniority while on unpaid
leave, which would in turn cause them irreparable harm. Testimony
offered by one of Plaintiffs’ experts, Fred Bates, shows how seniority
permeates nearly every aspect of an airline employees’ job, regardless of
their role. Pls.’ PI Hr’g App’x at 178–80, ECF No. 75. For instance, a
pilot’s seniority affects the aircraft he flies, the base he operates from,
the flight schedule he keeps, the amount and timing of vacation time-off
he receives, and myriad other aspects of his employment. See id.
Similarly, the seniority of an employee working inside an airport
dictates their ability to relocate to more desirable terminals. See id. A
mechanic’s seniority affects her ability to choose more desirable jobs,
like working inside an aircraft. See id. Less senior mechanics are
assigned more “dirty, heavy-lifting jobs” that would include cleaning the
lavatory filters, changing breaks and tires, lube jobs, and working on the
exterior of an aircraft where she is exposed to the elements. PI Hr’g Tr.
Vol II at 90:20–91:22. Mr. Bates concludes that employees who lose
seniority would suffer irreparable harm, regardless of their role with
United. Pls.’ PI Hr’g App’x at 178–80. Specifically, Mr. Bates opines that
any employee who “passes [Plaintiffs] in seniority while they are on
leave will forever be senior to them, even if [Plaintiffs] were hired first.”
Id. at 180.
In response, United does not dispute that employees on leave will
cease accruing seniority during leave; rather, United argues the Court
could retroactively restore Plaintiffs’ seniority if they succeed on their
claims. See PI Hr’g Tr. Vol. III at 91:12–92:7. The “aim of Title VII relief,
whether back-pay, retroactive seniority, or other injunctive relief, is thus
to make whole the victims of discrimination according to what would
have been their experience in a non-discriminatory work setting.”
Claiborne v. Ill. Cent. R. R., 583 F.2d 143, 149 (5th Cir. 1978) (emphasis
added). The Court has “broad discretion” to craft relief to achieve this
protective aim of Title VII. See Moseley v. Goodyear Tire & Rubber Co.,
612 F.2d 187, 191 (5th Cir. 1980). For instance, if the Court determines
United “engaged in unlawful employment practices, 42 U.S.C.
§ 2000e-5(g) gives [the Court] power to order such affirmative action as
it may deem appropriate.” Id. “Such affirmative action includes the
granting of remedial seniority.” Id. (emphasis added); see also Sims v.
City of Dallas, No. 3:95-CV-177-X, 1996 WL 722052, at *2 (N.D. Tex.
Dec. 5, 1996) (denying injunctive relief based on a lack of irreparable
harm because 42 U.S.C § 2000e-5(g) provided a legal remedy, including
restoration of seniority, for the alleged harms). Indeed, counsel for
United stipulated on the record that the Court has authority to “order
restoration of seniority . . . if [the Court] finds a violation of law at the
end of this case.” PI Hr’g Tr. Vol. III at 91:24–92:2.
The Court thus concludes that Plaintiffs’ looming loss of seniority is
insufficient to constitute irreparable harm.
3. Plaintiffs’ Theory of Irreparable Harm Related to Loss of Income,
Benefits, and Downstream Effects of the Same Fails
Plaintiffs next argue that exempted employees face a “host of serious
and irreparable injuries resulting from their loss of salary.” Pls.’ PI Br.
at 17. Plaintiffs cite Burlington Northern and Santa Fe Ry. Co. v. White,
548 U.S. 53, 72 (2006) to argue being placed on unpaid and losing income
would cause them irreparable injury harm. See Pls.’ TRO Br. at 11.
There, the Supreme Court noted that a 37-day period of unpaid leave
can constitute a “serious hardship.” Burlington Northern, 548 U.S. at
72. But the issue in that case was whether an employer committed an
adverse employment action by placing its employee on unpaid leave. See
id. The Supreme Court did not decide if “serious hardship” caused by
lost income during the period of unpaid leave constituted irreparable
harm. See id. This precedent is thus of limited probative value at this
stage of proceedings.
Here, the Court declines to expand the definition of serious to mean
irreparable.9 Rather, this Court follows the sound logic of the Honorable
United States District Judge Terry R. Means, who held that the
“irreparable harm necessary to obtain a preliminary injunction is not
established by loss of income, financial distress, or inability to find other
employment.” Hopkins v. Cornerstone Am., No. 4:05-CV-332-Y, 2006 WL
8453061, at *3 (N.D. Tex. Feb. 6, 2006) (citing Aldrich v. Skillern &
Sons, Inc., 493 F.Supp. 1073, 1075 (N.D. Tex. 1980)).
Plaintiffs also claim that the secondary effects of lost income—loss of
housing, health care, possible loss of educational and employment
opportunities, and psychological harm—are irreparable. Pls.’ PI Br. at
17–18. Mr. Castillo testified that he lives paycheck-to-paycheck and that
he will face homeless if United places him on unpaid leave. PI Hr’g Tr.
Vol. II, 90:4–10. Ms. Hamilton testified that, if placed on unpaid leave,
she would lose the income and medical insurance that currently fund
her husband’s cancer treatment. See id. at 48:5–50:2. Similarly, Ms.
Jonas testified that she will be unable to provide necessary healthcare
for her disabled husband without the income and medical insurance
provided by her employment with United. Pls.’ TRO App’x at 26, ECF
No. 7. Mr. Sambrano argues that, if placed on unpaid leave, he will need
to evaluate how to pay for his child’s college education and whether his
family will need to consider alternative education options. Id.
9Compare “serious,” in the context of injuries, defined as “potentially resulting in
death or other severe consequences” with “irreparable injury,” defined as “[a]n injury
that cannot be adequately measured or compensated by money and is therefore often
conserved remediable by injunction.” Serious, Irreparable Injury, BLACK’S LAW
DICTIONARY (9th ed. 2009).
Further, Plaintiffs assert, without citing supporting authority, that
being placed on unpaid leave in lieu of getting vaccinated “stigmatizes
them, harms their reputations, and makes transfer to another airline
for employment difficult.” Pls.’ PI Br. at 19. Plaintiffs did not direct the
Court to evidence supporting this contention. Without concrete evidence
on this point, the Court is dubious that potential difficulty obtaining
employment based on a perceived stigma qualifies as more than “mere
speculation” of a future injury, let alone an irreparable one. See Janvey,
647 F.3d at 601.
Finally, Plaintiffs argue that losing their income would cause them
to suffer irreparable psychological harms. These include marital strain,
family stress, and stress-induced high blood pressure. Pls.’ TRO App’x
at 4, 24, 29. The Court has no doubt that the strain, stress, and pressure
that Plaintiffs describe are genuinely felt. But these psychological
stressors, as alleged, are again simply too speculative. Further, such
stressors are ubiquitous in employment discrimination disputes
involving lost income (not to mention the subsequent litigation). The
Court sees no reason, however, that these alleged harms could not be
compensated through monetary relief. See Hopkins, 2006 WL 8453061,
at *3. If the Court held that this type of psychological harm is
irreparable, almost any employee alleging discrimination could meet the
irreparable harm element for injunctive relief.
The Court is not insensitive to Plaintiffs’ plight. A loss of income,
even temporary, can quickly ripple out to touch nearly every aspect of
peoples’ lives, and the lives of their families and dependents. But the
Court’s analysis must be guided by the law, not by its sympathy.10
Despite the novel facts presented here, the case law is clear that
10The Court is reminded of the celebrated Virginia jurist Brockenbrough Lamb,
who observed in a case with tragic facts that although he
regret[ed] that the conclusion reached will prevent a recovery and may
thereby defeat the ends of justice in the particular case before [the
court], but however that may be, we must declare the law as we find it
written and comfort ourselves with the confident belief that in its results
it will promote the ends of justice to all.
Judge Brockenbrough Lamb, The Duty of Judges: A Government of Laws and Not of
Men, in Handbook for Judges 93 (Donald K. Carroll ed., 1961) (emphasis added).
hardships stemming from loss of income are remediable; axiomatically
such hardships cannot be called irreparable.
4. Plaintiffs’ Skill-Deterioration Theory of Irreparable Harm Fails
Plaintiffs next argue that being “forced onto leave will cause [their]
perishable skills to deteriorate, and no amount of financial
compensation on the backend can return to employees the time they
lost—potentially years . . . .” Pls.’ PI Br. at 18–19. For example, Plaintiffs
asserted that “pilots must remain up to date on current technology and
fly frequently to maintain their skills.” Id. While on leave, pilot-
Plaintiffs argue they could not continue “to develop the skills necessary
for their careers, and [those skills] would increase their value to United
and, potentially, other carriers.” Id. These Plaintiffs further argue that
they could lose their FAA certification to fly if they went an extended
period without completing flights. See PI Hr’g Tr. Vol. II at 127. This, in
turn, would require them to undergo additional training that would not
otherwise be necessary. Id.
While the Court acknowledges the sophisticated skillset that airline
pilots possess and recognizes the importance of maintaining those skills,
this argument is ultimately unpersuasive. First, this deterioration of
skills is too speculative to constitute harm that is both imminent and
irreparable. Testimony from the Preliminary Injunction Hearing
showed that this skill-deterioration would happen over for several
months, not days. Id. at 133. Second, United provided the Court with
adequate evidence that there are ways to mitigate these harms. Id. at
74. For instance, Plaintiffs are permitted to complete simulated flights
to avoid losing their certification and being disqualified from flying. Id.
Plaintiffs offered expert testimony claiming that simulator training is
less optimal than real-world flights. See Pls.’ PI Hr’g App’x at 179. But
the Court cannot conclude that this difference will cause irreparable
harm. Finally, the Court is persuaded that Plaintiffs’ skill-deterioration
argument sweeps too broad. See PI Hr’g Tr. Vol. III at 46. If the Court
agreed with Plaintiffs’ argument, nearly every skilled professional in
employment discrimination cases could make the same claim to obtain
injunctive relief. See id.
Plaintiffs raise similar arguments with respect to other airline
employees. For instance, Plaintiffs argue that flight attendants “rely on
instincts and quick thinking to handle unexpected incidents that
happen in the cabin.” PI Hr’g Tr. Vol. III at 16:6–11. Similarly, Plaintiffs
argue that mechanics and aircraft traffic directors “work under intense
pressure, and exercise skills that will be diminished if they’re put out of
the workforce for an extended period of time.” Id. at 16:12–19. Plaintiffs
conclude such skills may become irrevocably rusted. Id. at 16:3–19.
Flight attendants, mechanics, and other employees undoubtedly
possess valuable skillsets that are kept most sharp by continuous use.
These allegations of potential skill-deterioration are, however, too
speculative for Plaintiffs to clearly carry their burden on this element.
B. Other Preliminary Injunction Elements
Because the Court concludes that Plaintiffs have not “clearly carried”
their burden to show irreparable harm will occur absent a preliminary
injunction, the Court need not address the other three elements at this
time. See Roho, Inc., 902 F.2d at 261; see also Miller Pharmacy Servs.,
LLC, 2021 WL 1095322, at *1 (“If a plaintiff fails to meet his burden
regarding any of the necessary elements, the Court need not address the
other elements necessary for granting a preliminary injunction.”). The
Court notes, without ruling on the likelihood of success, that Plaintiffs’
arguments appear compelling and convincing at this stage.
But several nascent questions remain unanswered, especially on
Plaintiffs’ Title VII discrimination claims and ADA retaliation claims.
For instance, United represented at the Preliminary Injunction Hearing
that it would implement a more robust policy to accommodate
“below-the-wing” employees. See PI Hr’g Tr. Vol. II at 193:17–194:19,
Vol. III at 90:9–23. In turn, United argued that this updated policy could
moot some of Plaintiffs’ claims. United has not, however, filed evidence
of this policy or informed the Court whether such a policy was ever
implemented. Further, it remains to be seen whether United would in
fact incur a more than de minimis burden in accommodating Plaintiffs.
This is, in part, because of another issue that was just recently brought
before the Court: the prospect of class certification. The scope of any
burden United may incur in reasonably accommodating exempted
Plaintiffs would correlate with the number of Plaintiffs that would need
accommodated. This is especially true considering the architect of
United’s accommodation policy, Mr. Limacher, testified that the burden
of accommodating a single employee would be no more than de minimis.
See PI Hr’g Tr. Vol. II at 199:23–200:1.
C. Conclusion
The Court faces the difficult task of balancing individual liberties
against a company’s ability to exercise its business judgment. As the
Court noted at the beginning of the Preliminary Injunction Hearing, it
is emphatically the province and duty of the Court to apply the law as
written, rather than creating policy from the bench.11 This is
particularly apt regarding a private company’s human resource policy.
There are many divergent views on how United handled this delicate
situation. To be sure, the Court is disturbed by United’s seemingly
calloused approach to its employees’ deeply personal concerns with
injecting a foreign substance into their bodies. This is especially true
since United stated on the record that 99% of its employees are
vaccinated and that there is virtually no chance to transmit COVID-19
on its planes. See PI Hr’g Tr. Vol. II at 162:16–19, 236:2–237:8. United
has thus instituted a regime in which nothing short of complete
compliance with its commands will suffice. Any dissenters will be given
the trifling pittance of indefinite unpaid leave. United’s mandate thus
11In reaching this holding, the Court notes its agreement with Judge Edward C.
Burks of the Supreme Court of Virginia, who wrote in a heartbreaking 1878 opinion:
The unhappy condition of the appellee excites my commiseration; but
courts of justice are not allowed to be controlled in their decisions by
considerations of that character. “Compassion,” said an eminent
Virginia chancellor, “ought not to influence a judge, in whom, acting
officially, apathy is less a vice than sympathy.”
Harris v. Harris, 72 Va. 31 Gratt. 13, *32 (1878) (quoting Chancellor George Wythe,
Commentary on Field’s Ex’x v. Harrison & wife, in Wythe’s Reports 282 (Minor’s Ed.
1794)).
reflects an apathy, if not antipathy, for many of its employees’ concerns
and a dearth of toleration for those expressing diversity of thought. 12
The Court’s concerns were substantiated by evidence presented at
the Preliminary Injunction Hearing. For instance, Plaintiffs showed a
video where United’s CEO, Scott Kirby, expressed skepticism and
apparent disdain for any religiously-motivated exemption requests. See
Video Clip of Scott Kirby during United Town Hall, ECF No. 75-29. At
a United town-hall meeting, Mr. Kirby publicly cautioned that “very
few” religious exemptions would be granted. Jd. Mr. Kirby then publicly
warned “any employee [who] all the sudden decided I’m really religious”
would unequivocally be “putting your job on the line. You'd better be
very careful about that.” Jd. Such statements paint a vivid picture of
United’s perspective on employees who requested religious exemptions.
United’s subsequent actions in “accommodating” these employees
suggest that United’s actions may not have been motivated by safety
concerns. Instead, United’s actions may be viewed as merely pretextual.
Ultimately, however, it is not for the Court to decide if United’s
vaccine mandate is bad policy. Rather, it is the Court’s role to determine
if Plaintiffs carried their burden to obtain a preliminary injunction.
ORDER
Bound by precedent, the Court concludes that Plaintiffs have not
clearly carried their burden to show they would likely suffer imminent,
irreparable injury absent an injunction. The Court thus DENIES
Plaintiffs’ Motion for Preliminary Injunction. ECF No. 5.
SO ORDERED on this 8th day of November, 2021.
——
ih. 7 b-etbm:
Mark T. Pittman
UNITED STATES DISTRICT JUDGE
122°The allowance of opinions or beliefs, [especially] religious ones, that differ from
prevailing norms.” Toleration, BLACK’S LAW DICTIONARY (9th ed. 2009).
15