Sambrano v. United Airlines Inc

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 United’s Renewed Motion for Partial Dismissal

of Plaintiffs’ Second Amended Complaint and Motion to Transfer Venue.

ECF Nos. 209, 216. Having considered the Motions, the Court finds that

United’s Motion to Dismiss should be and is hereby GRANTED in part.

United’s Motion to Transfer Venue is DENIED.

BACKGROUND

Plaintiffs are employed by United in a range of different roles and

bring claims arising from United’s COVID-19 vaccine mandate policy.

On August 6, 2021, United announced that it would require all

employees to get a COVID-19 vaccine. To that end, United mandated

that employees be vaccinated by September 27, 2021. United employees

could request an exemption from the mandate for religious or medical

reasons, but not both. Ms. Hamilton, Ms. Kincannon, Ms. Medlin, and

Mr. Burk requested religious exemptions; Ms. Jonas and Mr. Rains

requested medical exemptions; and Mr. Sambrano and Mr. Castillo

requested both religious and medical exemptions, but only Mr.

Sambrano’s religious exemption and Mr. Castillo’s medical exemption

were accepted.

In November 2021, United placed unvaccinated employees who

received accommodations on indefinite unpaid leave. Some remained on

unpaid leave until March 28, 2022; others were permitted to return to

work provided they wear a mask and submit regular COVID-19 test

results. 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 and by retaliating against them for engaging

in a protected activity (i.e., requesting an exemption). After two years,

an appeal to the Fifth Circuit, and hundreds of filings, United filed the

instant Motion to Dismiss in September 2023.

LEGAL STANDARD

Rule 12(b)(6) allows a defendant to move to dismiss an action if the

plaintiff fails to state a claim upon which relief can be granted. See FED.

R. CIV. P. 12(b)(6). In evaluating a Rule 12(b)(6) motion, the court must

accept all well-pleaded facts as true and view them in the light most

favorable to the plaintiff. See Inclusive Cmtys. Project, Inc. v. Lincoln

Prop. Co., 920 F.3d 890, 899 (5th Cir. 2019) (quoting Campbell v. Wells

Fargo Bank, N.A., 781 F.2d 440, 442 (5th Cir. 1986)). “Further, ‘all

questions of fact and any ambiguities in the controlling substantive law

must be resolved in the plaintiff’s favor.’” Id. (quoting Lewis v. Fresne,

252 F.3d 352, 357 (5th Cir. 2001)). However, courts are not bound to

accept as true legal conclusions couched as factual allegations. See In re

Ondova Ltd., 914 F.3d 990, 993 (5th Cir. 2019) (quoting Papasan v.

Allain, 478 U.S. 265, 286 (1986)). The well-pleaded facts must permit

the court to infer more than the mere possibility of misconduct. See Hale

v. King, 642 F.3d 492, 499 (5th Cir. 2011) (quoting Ashcroft v. Iqbal, 556

U.S. 662, 678 (2009)). That is, the complaint must allege enough facts to

move the claim across the line from conceivable to plausible. See Turner

v. Pleasant, 663 F.3d 770, 775 (5th Cir. 2011) (quoting Bell Atl. Corp. v.

Twombly, 550 U.S. 544, 570 (2007)). Determining whether the

plausibility standard has been met is a “context-specific task that

requires the reviewing court to draw on its judicial experience and

common sense.” Id. (quoting Iqbal, 556 U.S. at 663–64).

ANALYSIS

United asserts six arguments in its Motion to Dismiss. First, United

argues the Court should dismiss three Plaintiffs’ Title VII failure-to-

accommodate claims, arguing (1) Hamilton and Castillo have not

sufficiently alleged that they suffered an adverse employment action, (2)

United’s accommodation for Hamilton, Castillo, and Jonas was

reasonable as a matter of law, and (3) Hamilton, Castillo, and Jonas

should be estopped from arguing the accommodation was unreasonable.

Second, United argues Jonas and Rains’s ADA claims should be

dismissed because they have not shown they have a disability within the

meaning of the ADA. Third, United argues all Plaintiffs’ retaliation

claims under Title VII and the ADA should be dismissed because (1) they

did not engage in a protected activity by seeking an accommodation, and

(2) United’s accommodations were not retaliatory. Fourth, United

argues (1) Medlin, Rains, and Castillo’s claims are time-barred in full or

in part, (2) All Plaintiffs’ retaliation claims are beyond the scope of their

EEOC charge, and (3) Jonas’s Title VII claim is beyond the scope of her

EEOC charge. Fifth, United asks the Court to dismiss all Plaintiffs’

standalone “interactive process” claims. Sixth, United argues all

Plaintiffs’ request for a permanent injunction should be dismissed as

moot. The Court addresses each argument in turn.

The Court agrees with United that (1) Hamilton and Castillo have

not suffered an adverse employment action, (2) United did not retaliate

against Plaintiffs for seeking an accommodation, (3) Medlin, Rains, and

Castillo’s claims are time-barred in full or in part, and (4) Jonas’s Title

VII claim is beyond the scope of her EEOC charge.

A. Title VII Failure-to-Accommodate Claims

First, United argues that the Court should dismiss Hamilton,

Castillo, and Jonas’s Title VII failure-to-accommodate claims. United

advances three arguments: (1) Hamilton and Castillo failed to

adequately allege a materially adverse—or more than de minimis—

employment action to state a prima facie claim; (2) even if all three

Plaintiffs state prima facie claims, masking and testing is a reasonable

accommodation as a matter of law; and (3) all three Plaintiffs should be

estopped from arguing that United’s masking and testing protocol is

unreasonable because they began this litigation by asking for a masking

and testing option instead of indefinite unpaid leave.

1. Castillo and Hamilton do not allege more than a de minimis

adverse employment action.

United argues that Hamilton and Castillo failed to allege an adverse

employment action under Title VII that is either “material” or “more

than de minimis.” ECF No. 209 at 9. United argues that an adverse

employment action must be “material,” while Plaintiffs argue that it

need only be more than de minimis. See ECF Nos. 209 at 9; 213 at 7. As

the Parties endorse different standards, the Court starts by clarifying

which applies.

In the Fifth Circuit, courts “analyze[] a Title VII claim for a failure

to accommodate religious observances under a burden-shifting

framework akin to the McDonnell Douglas Corp. v. Green, 411 U.S. 792

(1973), burden-shifting framework.” 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)). “If she does, the burden

shifts to the defendant to demonstrate either that it reasonably

accommodated the employee, or that it was unable to reasonably

accommodate the employee’s needs without undue hardship.” See id.

(citations omitted). To establish a prima facie case of religious

discrimination under Title VII, the plaintiff must present evidence that

“(1) she held a bona fide religious belief, (2) her belief conflicted with a

requirement of her employment, (3) her employer was informed of her

belief, and (4) she suffered an adverse employment action for failing to

comply with the conflicting employment requirement.” Id. (citation

omitted).

As to the fourth element of the prima facie case, the Fifth Circuit in

Hamilton v. Dall. Cnty. explained that a plaintiff plausibly alleges Title

VII discrimination by showing discrimination in hiring, firing,

compensation, or the “terms, conditions, or privileges” of her

employment. 79 F.4th 494, 502 (5th Cir. 2023) (citing 42 U.S.C. § 2000e-

2(a)(1)). A plaintiff need not show an “ultimate employment decision.”

Id. Hamilton left “for another day the precise level of minimum

workplace harm a plaintiff must allege on top of showing discrimination

in one’s terms, conditions, or privileges of employment.” Id. at 505

(internal quotations omitted). But Hamilton made clear that “Title VII

[] does not permit liability for de minimis workplace trifles.” Id. at 505.

Hamilton involved a sex-discrimination claim brought by female

detention service officers against the Dallas County Sheriff’s

Department. See id. at 497. The department gave its detention service

officers two days off each week, and used a sex-based policy to determine

which two days an officer could pick. See id. Only men could select full

weekends off—women could not. See id. The Complaint alleged that this

sex-based system discriminated against the officers in the “terms,

conditions, or privileges of employment.” Id. at 504. The department

argued that the plaintiffs had not suffered an actionable “adverse

employment action” for purposes of a Title VII claim. See id. The

department argued that to prove an adverse employment action, a

plaintiff should be required to show—in addition to discrimination with

respect to the “terms, conditions, or privileges of employment”—a

“materially adverse employment action,” a “tangible employment

action,” or an “objective material harm.” Id. (emphasis added).

Ultimately, the Fifth Circuit held that “whatever standard we might

apply,” whether it be a “de minimis” standard or a “materiality”

standard, “it is eminently clear that the Officers’ allegations would

satisfy it at the pleading stage.” Id. at 505. As the Fifth Circuit noted:

“It’s that simple. At the pleading stage, these allegations are sufficient

to state a claim under Title VII.” Id. Thus, the Fifth Circuit left district

courts with little guidance as to the minimum workplace harm a

plaintiff must show to state a prima facie discrimination claim.

The Fifth Circuit clarified the Hamilton standard in Harrison v.

Brookhaven Sch. Dist., explaining that:

Title VII does not permit liability for de minimis workplace trifles.

Thus, Harrison must allege not only an adverse action, but

something more than a de minimis harm borne of that action.

This is often referred to as the “materiality” half of the analysis

. . . . To “discriminate” reasonably sweeps in some form of an

adversity and a materiality threshold. It prevents the undefined

word “discrimination” from commanding judges to supervise the

minutiae of personnel management. It ensures that a

discrimination claim involves a meaningful difference in the

terms of employment and one that injures the affected employee

. . . . But we take these innovations to be shorthand for the

operative words in the statute and otherwise to incorporate a de

minimis exception to Title VII. But de minimis means de minimis,

and shorthand characterizations of laws should not stray.

82 F.4th 427, 431–32 (5th Cir. 2023) (cleaned up) (internal citations and

quotations omitted). In other words, the “de minimis” and “materiality”

standards are one and the same. Materiality is a shorthand

characterization of the well-established de minimis standard, which

“has roots that stretch to ancient soil.” Id. at 423. And thus, courts must

give the de minimis standard its familiar meaning—“de minimis non

curat lex (the law does not take account of trifles).” Id. Accordingly, a

plaintiff alleges an adverse employment action if she alleges more than

de minimis discrimination in the terms, conditions, or privileges of

employment.

Harrison paints a clear picture of the de minimis standard in action.

In Harrison, plaintiff LaRenda Harrison, a black female educator and

school administrator, sued the school district for promising and then

refusing to pay for her to attend a training program for prospective

superintendents. Id. at 428. The only element of her claim at issue was

whether she suffered an adverse employment action. Id. at 429. The

court held that Harrison “alleges more than a de minimis injury inflicted

on her by the School District’s adverse action: the personal expenditure

of approximately $2,000.” Id. at 432. The Court explained that this “is

not a de minimis out-of-pocket injury, particularly when that expense

was originally promised to be paid by someone else.” Id. Thus, the court

concluded that “Harrison’s injury clears the de minimis threshold.” Id.

Having clarified the applicable standard, the Court must now ask if

Hamilton and Castillo suffered more than a de minimis adverse

employment action. Hamilton and Castillo allege that the masking and

testing protocol “altered the conditions and terms of [their]

employment.” ECF No. 213 at 7–8. Specifically, they allege they were

required to “provide regular COVID-19 test results,” their workstations

were sprayed with Lysol “making it hard for [them] to breathe,” they

were “needlessly banished to eat outdoors,” and they were required to

“wear an N-95 respirator” as opposed to a KN-95 or cloth mask. ECF No.

156 at 27, 29. These, just as any personnel-management decisions, may

have altered Hamilton and Castillo’s terms, conditions, and privileges

of employment. But unlike the $2,000 out-of-pocket expenditure in

Harrison or the inability to take weekends off in Hamilton, the

requirement to eat in designated areas, wear an FDA-approved mask at

work, and submit COVID-19 test results do not clear the de minimis

threshold.

To be sure, an injury need not be an “economically adverse

employment action[]” to satisfy the de minimis threshold. Harrison, 82

F.4th at 430. But the de minimis standard prevents judges from

supervising the “minutiae of personnel management.” Id. at 431. The

COVID-19 pandemic was a once in a century event, unprecedented in

the modern era. If the de minimis standard excludes any workplace

harm, surely it prevents judges from supervising a company’s decisions

regarding how employees’ workspaces are sanitized, where employees

take lunch, how often they submit COVID-19 test results, and the type

of masks they wear. 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. De minimis non

curat lex. The law does not take account of trifles.

Undoubtedly, Hamilton broadened the scope of Title VII from the

previous “ultimate employment decision” test. See Hamilton, 79 F.4th

at 497. In this regard, Hamilton brought the Fifth Circuit in line with

Title VII’s text and the approach taken by other circuits. See id. at 497,

504 n.62. And this Court will not expand the Hamilton standard into the

sphere of these workplace trifles, absent clear direction from the Fifth

Circuit. If such claims are allowed to survive at this stage, district courts

would become “super-personnel departments.” Eyob v. Mitsubishi

Caterpillar Forklift Am., Inc., 745 F. App’x 209, 214 (5th Cir. 2018)

(citing Riser v. Target Corp., 458 F.3d 817, 821 (8th Cir. 2006)). The

Court is disinclined to so broaden the judiciary’s role here.

Plaintiffs also argue United’s initial decision to terminate Castillo

and put Hamilton on unpaid leave constituted more than de minimis

adverse employment actions, even though these decisions were never

carried out. The Court disagrees. Hamilton and Castillo were never

terminated or placed on unpaid leave. They never changed jobs or lost

any pay, benefits, or opportunities. Thus, their “terms, conditions, or

privileges” of employment were unaffected by United’s unrealized

decisions. Plaintiffs argue that these were “ultimate employment

decisions,” borrowing a phrase from the Fifth Circuit’s pre-Hamilton

standard. See ECF No. 213 at 7 (“The fact that this lawsuit forced United

to walk back portions of its universal unpaid-leave plan does not erase

United’s previous ultimate decisions, which harmed Plaintiffs.”). Setting

aside the question of whether an unrealized decision would have passed

the Fifth Circuit’s prior test, the Court must apply the Hamilton test—

the test that tethers the Court’s analysis to the text of Title VII, asking

whether a plaintiff has pled discrimination in “hiring, firing,

compensation, or the ‘terms, conditions, or privileges’” of employment.

Hamilton, 79 F.4th at 497. Hamilton and Castillo were not fired, their

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

affect these Plaintiffs’ terms, conditions, or privileges of employment.

Plaintiffs nonetheless cling to the Fifth Circuit’s outdated test because

an ultimate employment “decision” was made, just not carried out. This

argument is unavailing.

On the other hand, other employees who were actually placed on

indefinite unpaid leave clearly suffered more than a de minimis adverse

employment action—being deprived of their livelihood until such time

as United saw fit for them to return to work. The same could be said for

employees who lost responsibilities or were forced to change jobs. United

does not argue—nor could it successfully—that these Plaintiffs do not

satisfy the de minimis threshold. But Hamilton and Castillo, who were

never terminated or placed on unpaid leave, do not clear this hurdle.

The Court finds that Hamilton and Castillo have not established an

essential element of their prima facie case because they were not subject

to more than a de minimis adverse employment action. Accordingly,

Hamilton and Castillo’s failure-to-accommodate claims are

DISMISSED with prejudice.

2. The Court declines to prematurely assess whether United’s

masking and testing protocol is a reasonable accommodation.

Next, United argues that the Court should dismiss Hamilton,

Castillo, and Jonas’s failure-to-accommodate claims because masking

and testing is a reasonable accommodation as a matter of law. The Court

disagrees. “Whether an accommodation is reasonable is a question of

fact.” Antoine, 713 F.3d at 830–31 (citing Turpen v. Mo.-Kan.-Tex. R.R.

Co., 736 F.2d 1022, 1026 (5th Cir.1984)) (“We must uphold the district

court’s factual determinations on the interlocking issues of ‘reasonable

accommodation’ and ‘undue hardship’ unless they appear clearly

erroneous.”)); see also EEOC v. Universal Mfg. Corp., 914 F.2d 71, 73

(5th Cir. 1990) (“We need not embark on a long discussion of what is or

is not ‘reasonable’ accommodation. Ordinarily, questions of

reasonableness are best left to the fact finder.”). Thus, whether an

accommodation is reasonable is a fact-specific inquiry best left to the

factfinder. Accordingly, the Court declines to dismiss Hamilton, Castillo,

Jonas’s failure-to-accommodate claim at the motion to dismiss stage.

3. Plaintiffs are not estopped from arguing United’s masking and

testing protocol is unreasonable.

Finally, United argues that Hamilton, Castillo, and Jonas should be

estopped from arguing that United’s masking and testing protocol was

an unreasonable accommodation. Specifically, United believes the

doctrine of judicial estoppel and “commonsense equitable principles”

preclude these Plaintiffs from arguing the protocol was unreasonable

because they “started out in this litigation by demanding masking and

testing as an accommodation.” See ECF No. 209 at 15 (citing ECF No. 6

at 19). This argument has certain intuitive merit, as Hamilton, Castillo,

and Jonas, in initially seeking a temporary restraining order, argued

“there are a host of reasonable accommodations that are not unduly

burdensome, including: mask wearing . . . or periodic COVID-19

testing.” ECF No. 6 at 19. The Court nevertheless remains unpersuaded.

The doctrine of judicial estoppel is equitable in nature and can be

invoked by a court to prevent a party from asserting a position

inconsistent with a position they asserted in a prior proceeding. See Reed

v. City of Arlington, 650 F.3d 571, 573–74 (5th Cir. 2011) (en banc). In

determining whether to apply judicial estoppel, courts primarily look for

the presence of the following criteria: “(1) the party against whom

judicial estoppel is sought has asserted a legal position which is plainly

inconsistent with a prior position; (2) a court accepted the prior position;

and (3) the party did not act inadvertently.” Id. at 574 (citations

omitted). Judicial estoppel “is not governed by inflexible prerequisites

or an exhaustive formula for determining its applicability, and

numerous considerations may inform the doctrine’s application in

specific factual contexts.” Love v. Tyson Foods, Inc., 677 F.3d 258, 261

(5th Cir. 2012) (internal citations omitted) (cleaned up). But “[t]he

presence of one or more of these elements does not mandate the

invocation of judicial estoppel.” U.S. ex rel. Long v. GSDMIdea City,

LLC, 798 F.3d 265, 272 (5th Cir. 2015) (“Because judicial estoppel is

equitable in nature, trial courts are not required to apply it in every

instance that they determine its elements have been met.”). Rather,

courts should determine if applying judicial estoppel is appropriate “in

light of the specific facts of each case and the doctrine's purpose of

‘protect[ing] the integrity of the judicial process.’” Id. at 272.

Focusing on the first criterion, Plaintiffs persuasively argue that the

“[t]he issue here is not masking and testing in the abstract,” but the

specific masking and testing protocol United adopted. ECF No. 213 at 6.

Hamilton, Castillo, and Jonas do not assert a “plainly inconsistent”

position by later objecting to the specific protocol implemented by

United. See generally Hall v. GE Plastic Pac. PTE Ltd., 327 F.3d 391,

396 (5th Cir. 2003) (applying estoppel because the plaintiff first argued

that one defendant was the manufacturer of the product at issue and

then later argued a different defendant was the manufacturer); United

States v. Holy Land Found. for Relief & Dev., No. 3:04-cr-240-G, 2007

WL 1308383, at *1 (N.D. Tex. May 4, 2007) (Fish, J.) (applying estoppel

because the government first argued that documents were in its

possession and then later argued that the documents were not in its

possession). Accordingly, the Court declines to exercise its equitable

discretion to estop these plaintiffs from arguing United’s specific

masking and testing protocol was unreasonable.

B. ADA Failure-To-Accommodate Claims

Second, United argues that the Court should dismiss Jonas and

Rains’s failure-to-accommodate claim under the ADA because they have

failed to sufficiently allege that they have a disability. 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 v. Navarro Cnty., Tex., 652 F. Supp. 3d

754, 762 (N.D. Tex. 2023) (citing Feist v. La., Dep’t of Just., Off. of the

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

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)). The ADA

Amendments Act of 2008 requires the Court to interpret the term

“substantially limits” as broadly as possible. Id. (citing 42 U.S.C. §

12102(4)(A)–(B)). “[M]ajor life activities include, but are not limited to,

caring for oneself, performing manual tasks, seeing, hearing, eating,

sleeping, walking, standing, lifting, bending, speaking, breathing,

learning, reading, concentrating, thinking, communicating, and

working.” 42 U.S.C. § 12102(2)(A).

Here, Jonas and Rains allege that they have disabilities within the

meaning of the ADA. Jonas alleges that she has a “severe allergy

disability.” ECF No. 156 at 30. Jonas “cannot take medicines such as

penicillin and has severe reactions to foods such as eggs and materials

such as wool.” Id. She must “tak[e] allergy medications each day and

constantly carry[] a rescue inhaler and epi-pen with her in case she

comes into contact with an environmental trigger.” Id. Rains alleges that

he has a “hereditary heart disease as well as heart stents and a repaired

aorta” and a “history of allergic reactions—including anaphylaxis.” Id.

at 34–35.

At this stage, the Court must accept all well-pleaded facts as true,

view them in the light most favorable to Plaintiffs, and resolve all

questions of fact and ambiguities in the substantive law in Plaintiffs’

favor. See Inclusive Cmtys. Project, 920 F.3d at 899. Assuming Jonas and

Rains’s allegations are true, the Court may infer that these “severe

allergies” substantially limit a major life activity. In Jonas’s case,

carrying an epi-pen implies that an encounter with an allergen carries

a risk of life-threatening allergic reactions (most commonly

anaphylaxis). During such an episode, it can be inferred that eating,

speaking, breathing, thinking, communicating, or working may be

substantially limited. These are all major life activities. See 42 U.S.C. §

12102(2)(A). Likewise, Rains’s allegation that he has a history of

anaphylaxis similarly implies that these major life activities would be

limited during an anaphylactic episode. Thus, resolving all questions of

fact in Plaintiffs’ favor, the Court concludes that Jonas and Rains have

sufficiently pleaded disabilities within the meaning of the ADA—at least

at the motion to dismiss stage.

C. Title VII and ADA Retaliation Claims

Third, United argues that the Court should dismiss all Plaintiffs’

retaliation claims. Specifically, United advances two arguments: (1) all

Plaintiffs have failed to show they engaged in a protected activity by

seeking an accommodation, and (2) all Plaintiffs have failed to show that

United retaliated against them for seeking an accommodation.

1. Plaintiffs engaged in a protected activity by seeking medical and

religious accommodations.

Title VII and the ADA prohibit retaliation against an individual for

engaging in a protected activity. See 42 U.S.C. §§ 2000e-3(a), 12203(a).

In the Fifth Circuit, the court “applies the same analysis to ADA and

Title VII retaliation claims.” Seaman v. CSPH, Inc., 179 F.3d 297, 301

(5th Cir. 1999). To state a Title VII retaliation claim, the plaintiff must

allege facts that tend to establish: “(1) that she engaged in activity

protected by Title VII, (2) that an adverse employment action occurred,

and (3) that a causal link existed between the protected activity and the

adverse action.” Gee v. Principi, 289 F.3d 342, 345 (5th Cir. 2002)

(cleaned up). An employee has engaged in a protected activity when she

has (1) “‘opposed any practice made an unlawful employment practice’

by Title VII” (the opposition clause) or (2) “‘made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding,

or hearing’ under Title VII” (the participation clause). Douglas v.

DynMcDermott Petrol. Operations Co., 144 F.3d 364, 372 (5th Cir. 1998)

(citing 42 U.S.C. § 2000e–3(a)).

Here, Plaintiffs base their retaliation claims on the theory that they

“engaged in protected activity when they requested (or tried to request)

religious [or medical] accommodations from United’s vaccine mandate.”

See ECF No. 156 at 43, 45–46. United disagrees, arguing that Plaintiffs’

accommodation requests were not protected activities. See ECF No. 209

at 15. Specifically, United argues that Plaintiffs did not “oppose” any

unlawful employment practice by requesting an accommodation. See id.

In the context of the ADA, requesting a medical accommodation is a

protected activity that satisfies the first element of a retaliation claim.

See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 317 (5th Cir.

2007) (holding an employee claiming retaliation for requesting

reasonable accommodations established a prima facie case of retaliation

under the ADA); see also Tabatchnik v. Cont’l Airlines, 262 Fed. App’x.

674, 676 (5th Cir. 2008) (per curiam) (“It is undisputed that making a

request for a reasonable accommodation under the ADA may constitute

engaging in a protected activity.”); Cooper v. AT&T Corp./Lucent Tech.,

No. SA97-CA-0628-OG, 1998 WL 1784223, at *7 (W.D. Tex. Oct. 22,

1998) (Mathy, M.J.), report and recommendation adopted sub nom.,

1998 WL 1978660 (W.D. Tex. Dec. 8, 1998) (Garcia, J.) (“[A]lthough a

person making [an accommodation] request might not literally ‘oppose’

discrimination or ‘participate’ in the administrative or judicial

complaint process, she is protected against retaliation for making the

request.”).

Likewise, under Title VII, at least one court in the Fifth Circuit has

held that a request for religious accommodation constitutes a protected

activity. See EEOC v. U.S. Steel Tubular Prod., Inc., No. 4:14-cv-02747,

2016 WL 11795815, at *16 (S.D. Tex. Aug. 4, 2016) (Harmon, J.). Indeed,

this is the EEOC’s view. The EEOC’s Compliance Manual states:

“[p]rotected oppositional conduct includes actions such as . . . requesting

reasonable accommodation for disability or religion.” EEOC Compl.

Man. § II-A(2)(e) (Aug. 2016); see also Fed. Express Corp. v. Holowecki,

552 U.S. 389, 399 (2008) (explaining that the EEOC’s compliance

manual “reflect[s] a body of experience and informed judgment to which

courts and litigants may properly resort for guidance.”).

Other courts that have considered this issue have adopted the

EEOC’s view. See, e.g., Lewis v. N.Y.C. Transit Auth., 12 F. Supp. 3d

418, 449 (E.D.N.Y. 2014) (Townes, J.) (holding Muslim employee’s

refusal to remove khimar and request for religious accommodation were

protected activities); Jenkins v. N.Y.C. Transit Auth., 646 F. Supp. 2d

464, 473 (S.D.N.Y. 2009) (Koeltl, J.) (holding Pentecostal bus driver’s

refusal to wear uniform and request for religious accommodation were

protected activities); Williams v. Wal–Mart Assocs. Inc., 2:12–CV–

03821–AKK, 2013 WL 979103, at *3 (N.D. Ala. Mar. 8, 2013) (Kallon,

J.) (“[R]equesting a religious accommodation and refusing to work due

to First Amendment religious exercise was [a] ‘protected activity.’”).

For the moment, resolving any ambiguities in the controlling law in

Plaintiffs’ favor, the Court assumes that Plaintiffs’ requests for medical

and religious accommodations constituted protected activities for

purposes of their retaliation claims.

2. United’s accommodations were not retaliatory.

But United next argues that even if Plaintiffs’ accommodation

requests were protected activities, Plaintiffs have failed to show that

United retaliated against them for seeking accommodations. See ECF

No. 209 at 13. The Court agrees.

As previously discussed, to state a Title VII retaliation claim, a

plaintiff must allege facts that tend to establish: “(1) that she engaged

in activity protected by Title VII, (2) that an adverse employment action

occurred, and (3) that a causal link existed between the protected

activity and the adverse action.” Gee, 289 F.3d at 345 (cleaned up). In

the retaliation context, an adverse employment action is one that might

dissuade a reasonable worker from engaging in a protected activity,

such as “making or supporting a charge of discrimination,” or in this

case, requesting a reasonable accommodation. Hernandez v. Yellow

Transp., Inc., 670 F.3d 644, 657 (5th Cir. 2012) (cleaned up); see also

Thompson v. N. Am. Stainless, LP, 562 U.S. 170, 174 (2011) (“Title VII’s

antiretaliation provision prohibits an employer from discriminating

against any of his employees for engaging in protected conduct.”); supra

Part (C)(1) (assuming requesting a reasonable medical or religious

accommodation is protected conduct). This analysis is the same under

both Title VII and the ADA. See Seaman, 179 F.3d at 301. To sustain a

retaliation claim, a plaintiff must point to “actions that would have been

materially adverse to a reasonable employee.” Burlington N. & Santa Fe

Ry. Co. v. White, 548 U.S. 53, 54 (2006). Thus, the question is whether

employees were treated materially worse than if they had not sought the

accommodation at all, such that they would be deterred from seeking an

accommodation. See id.

Here, assuming Plaintiffs engaged in a protected activity, Plaintiffs

still fail to satisfy the second element of a retaliation claim—they did

not suffer an adverse employment action. Plaintiffs argue that United

“retaliated against them by imposing unreasonable and unlawful

accommodations.” ECF No. 213 at 12. Specifically, Plaintiffs argue that

the looming possibility of being placed on indefinite unpaid leave was

itself an adverse employment action because the accommodation would

have dissuaded reasonable workers from seeking it in the first place. See

id. at 13. But it is undisputed that unvaccinated employees who did not

seek an accommodation were terminated for failing to comply with

United’s vaccine mandate. See ECF Nos. 209 at 14; 156 at 2. Thus, the

question is whether United’s indefinite unpaid leave policy would have

dissuaded a reasonable worker from seeking an accommodation, given

that failure get vaccinated or seek an accommodation would result in

termination. No reasonable worker would be deterred by United’s

unpaid leave policy from seeking an accommodation if they knew the

alternative was termination. Between these two choices, reasonable

employees would (and did) seek an accommodation to avoid termination.

To be sure, the choice between termination and indefinite unpaid

leave left many employees with no good options. But this is best

remedied by Plaintiffs’ failure-to-accommodate claims. If the Court

accepted Plaintiffs’ position that United “retaliated against them by

imposing unreasonable and unlawful accommodations,” any arguably

unreasonable accommodation could be said to “dissuade” workers from

seeking it. ECF No. 213 at 12. Every failure-to-accommodate claim

would also be a retaliation claim. The Court cannot allow the broad anti-

retaliation provisions of Title VII and the ADA to swallow up the

separate mandate that an employer reasonably accommodate its

employees.

The interpretive cannon lex specialis dictates that if two legal

provisions govern the same factual situation, the specific provision

overrides the general. See ANTONIN SCALIA & BRYAN GARNER, READING

LAW: THE INTERPRETATION OF LEGAL TEXTS 167 (2012) (“If there is a

conflict between a general provision and a specific provision, the specific

provision prevails.”). Title VII and the ADA must be interpreted so that

every word serves a purpose. Even if these statutes’ broad anti-

retaliation provisions covered Plaintiffs’ allegation that United’s unpaid

leave policy was unreasonable, Plaintiffs’ allegations are best governed

by the statutes’ mandate to reasonably accommodate. This is a separate

cause of action with separate elements, each of which Plaintiff must

prove to recover. To hold otherwise would erode the difference between

a failure-to-accommodate claim and a retaliation claim.

But even if Plaintiffs could show they suffered an adverse

employment action, Plaintiffs still fail to satisfy the third element of

their retaliation claim. Plaintiffs cannot show a causal connection

between the protected activity (seeking an accommodation) and the

adverse employment action (United’s unpaid leave policy). United’s

unpaid leave policy preceded Plaintiffs’ request for an accommodation,

so their request for an accommodation could not have “caused” the

unpaid leave policy to be instituted in retaliation for Plaintiffs engaging

in a protected activity. Cf. Sambrano v. United Airlines, Inc., No. 21-

11159, 2022 WL 486610, at *32 (5th Cir. Feb. 17, 2022) (Smith, J.,

dissenting); see also Gee, 289 F.3d at 345 (requiring “a causal connection

. . . between the protected activity and the adverse employment action”).

United created a system to accommodate its employees, and employees

participated in that system by requesting and receiving

accommodations. The question of whether those accommodations were

reasonable is a separate issue.

Each of these insufficiencies arise from Plaintiffs’ attempt to fit a

square peg into a round hole. This theory tasks the Court with

articulating why exactly a square peg does not fit into a round hole.

Ultimately, the answer is simple: Plaintiffs cry retaliation for United’s

supposed failure to reasonably accommodate. In so doing, Plaintiffs blur

the line between these two causes of action, asking the Court to erode

the difference between these claims. The Court declines to do so.

Accordingly, Plaintiffs’ retaliation claims under Title VII and the ADA

are DISMISSED with prejudice.

D. Time-Barred Claims

Fourth, United argues that the Court should dismiss several claims

as time-barred and beyond the scope of Plaintiffs’ EEOC charges. See

ECF No. 209 at 23–27. Specifically, United argues (1) Plaintiffs Medlin,

Rains, and Castillo’s claims are time-barred in full or in part under the

applicable statute of limitations, (2) all Plaintiffs’ retaliation claims are

beyond the scope of their respective EEOC charges, and (3) Plaintiff

Jonas’s Title VII claim is beyond the scope of her EEOC charge. See id.

After reviewing United’s Motion and Plaintiffs’ Response, the Court

requested supplemental briefing on the timeliness of Medlin, Rains, and

Castillo’s EEOC charges, giving Plaintiffs an opportunity to

demonstrate that they exhausted their administrative remedies. See

ECF No. 224.

1. Medlin, Rains, and Castillo’s claims are time-barred.

Under Title VII, plaintiffs must exhaust their administrative

remedies by filing a discrimination charge with the EEOC within 300

days “after the alleged unlawful employment practice occurred.” See 42

U.S.C. § 2000e-5(e)(1). The same is true for ADA claims. See id.

§ 12117(a). “Failure to exhaust is not a procedural ‘gotcha’ issue. It is a

mainstay of proper enforcement of Title VII remedies.” McClain v.

Lufkin Indus., Inc., 519 F.3d 264, 272 (5th Cir. 2008). Consequently,

courts must dismiss any claims where plaintiffs fail to show

administrative exhaustion. See id.

When using the EEOC’s Public Portal to file a discrimination charge,

the agency requires users to go through a multi-step process that

includes: (1) submitting an online inquiry, (2) scheduling an interview

with an EEOC representative, (3) participating in the interview, (4)

allowing the representative to assist in charge preparation, and (5)

editing and signing the formal “Form 5” charging document that is sent

to the employer. See Filing a Charge of Discrimination With the EEOC,

EEOC, https://www.eeoc.gov/filing-charge-discrimination (last visited

Dec. 15, 2023).

United argues that Castillo did not file a charge with the EEOC

within 300 days of the alleged unlawful employment action. See ECF

No. 209 at 25. Indeed, Castillo filed formal (Form 5) charges on

September 19, 2022—more than 300 days after the alleged unlawful

employment action. Id.; see also ECF No. 156 at 5, 26–27. Castillo argues

that his pre-charge filings are sufficient to constitute a charge. See ECF

No. 227 at 4–6. Similarly, Rains and Medlin filed formal charges on

November 3, 2022, but at least some of the alleged unlawful employment

actions occurred more than 300 days before that date. See ECF No. 209

at 24–26. Like Castillo, Rains and Medlin argue that their online inquiry

forms—filed by Rains in December 2021 and by Medlin in March 2022—

are sufficient to constitute a charge. See ECF No. 227 at 6–9.

Accordingly, the Court must determine whether Medlin, Rains, and

Castillo’s pre-charge filings were sufficient to constitute a charge.

The Supreme Court has clarified that any filing can deemed a

“charge” if it can be “reasonably construed as a request for the agency to

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

a dispute between the employer and the employee.” Fed. Exp. Corp. v.

Holowecki, 552 U.S. 389, 402 (2008). This is an objective standard based

on a review of the filing. See id. The Fifth Circuit has held that

preliminary filings may be deemed a charge under Holowecki if the

preliminary filings specifically asked the EEOC to take remedial action.

In EEOC v. Vantage Energy Servs., Inc., the Fifth Circuit found an

intake questionnaire with “sparse content” constituted a charge when

the employee checked a box stating: “I want to file a charge of

discrimination, and I authorize the EEOC to look into the discrimination

I described above.” 954 F.3d 749, 755 (5th Cir. 2020). The court reasoned

that checking this box “satisfies Holowecki’s additional request-to-act

condition” because it “constitutes a clear manifestation of [plaintiff’s]

intent for the EEOC [to] take remedial action.” Id.

But the online inquiry forms at issue here are an even more

preliminary filing than the intake questionnaire at issue in Vantage.

Online inquiry forms have no option to check a box requesting remedial

action. See Freeland v. Coors of Austin, L.P., No. A-14-CA-443-SS, 2015

WL 4744362, at *5, 8 (W.D. Tex. Aug. 10, 2015) (Sparks, J.). And courts

have held that initial forms cannot constitute a charge where they

“lack[] the request to act demanded by Holowecki.” Id. at *7. As the court

explained in Freeland:

A review of the case law in this circuit applying Holowecki

demonstrates courts analyzing intake questionnaires and any

accompanying documents consistently identify a specific

statement indicating a request to act when they deem a particular

filing a charge . . . . In cases where there is an absence of any

statement indicating a request for remedial action, courts in this

circuit have held the intake questionnaire is not a charge and

dismissed the plaintiff’s claims.

Id. at *8 (collecting cases). Indeed, most courts in this circuit (including

this Court) require that the filing contain a “specific request for EEOC

action” to constitute a charge under Holowecki.1 Accordingly, Medlin,

1See, e.g., Perkins v. Starbucks Corp., No. 4:21-CV-4189, 2022 WL 17069145, at *5

(S.D. Tex. Nov. 17, 2022) (Hanks, J.) (“[T]he inclusion of or reference to supporting

documentation, without an explicit request for the EEOC to take remedial action, does

not make a filing a charge.”); Angelina v. Univ. of Miss. Med. Ctr., No. 3:14-CV-789-

DPJ-FKB, 2015 WL 417846, at *3 (S.D. Miss. Jan. 30, 2015) (Jordan, J.) (“Nowhere in

her submission does Angelina request any action or otherwise ‘activate [the EEOC’s]

machinery and remedial processes.’”)); Nadesan v. Tex. Oncology PA, No. 2:10-CV-239-

J, 2011 WL 147570, at *5 (N.D. Tex. Jan. 18, 2011) (Robinson, J.) (“Nothing in

Nadesan’s Intake Questionnaire or attached supplement qualifies as a request that

the EEOC take action.”); Asongwe v. Washington Mut. Card Servs. & subsidiaries, No.

3:09-CV-0668, 2009 WL 2337558, at *3 (N.D. Tex. July 29, 2009) (Fish, J.) (“[T]he

intake questionnaire completed by Asongwe states the name of the charged party and

[it] alleges discrimination, but it fails to contain a request for remedial action.”);

Evenson v. Sprint/United Mgmt. Co., No. 3:08-CV-0759-D, 2008 WL 4107524, at *7

Rains, and Castillo’s inquiry forms are charges only if the forms asked

the EEOC to take remedial action.

Medlin—Medlin’s claims stem from allegations that (1) United

initially denied her religious accommodation “several weeks” after her

August/September 2021 request, and (2) her March 9, 2022 discharge

was unlawful. See ECF No. 156 at 37–38. Medlin submitted her online

inquiry form on March 12, 2022, and included her contact information,

general information about United, the reason for her dispute, and the

reason she believed she was terminated. See ECF No. 228-8 at 183.

Medlin’s inquiry form did not contain any statement that “must be

reasonably construed as a request for the agency to take remedial

action.” Holowecki, 552 U.S. at 402. Medlin filed her EEOC charge on

November 3, 2022. See ECF No. 228-8 at 178. Thus, her charge included

all discrete acts that occurred after January 7, 2022—300 days before

November 3, 2022. Accordingly, Medlin’s EEOC charge was timely with

respect to her allegation that she was unlawfully terminated on March

9, 2022. (which United does not dispute). Medlin has failed to show that

her EEOC charge was timely with respect to United’s alleged failure to

reasonably accommodate—based on its denial of her August/September

2021 accommodation request.

Despite making no specific request for remedial action, Medlin

argues that her online inquiry form should constitute a charge under

Holowecki for purposes of both her failure to accommodate claim and her

alleged unlawful termination. See ECF No. 227 at 12. This argument

could apply to Rains and Castillo as well, so the Court will address it in

full. Medlin argues that “[w]hen an employee reaches out to the EEOC

indicating they have been fired for a religious belief, that is a sure

indication that they want remedial action—there is no need for

talismanic words such as ‘please sue my employer.’” Id. This argument

misses the point addressed in Holowecki.

In Holowecki, the Supreme Court attempted to define a “charge” in a

way that allows the EEOC to “fulfill its distinct statutory function of

(N.D. Tex. Aug. 21, 2008) (Fitzwater, J.) (interpreting Holowecki as requiring a

“specific request for EEOC action” for a filing to constitute a charge).

enforcing antidiscrimination laws and disseminating information about

those laws to the public.” 552 U.S. at 400–01; see also 42 U.S.C. § 2000e-

4(g)(3) (noting that the EEOC shall have the power to “furnish to

persons subject to this title such technical assistance as they may

request”). Educating the public is “a critical part of the EEOC's mission;

and it accounts for a substantial part of the agency’s work.” Holowecki,

552 U.S. at 401. If any communication that loosely alleged

discrimination was considered a charge, countless individuals would

unknowingly create a “charge” by taking their questions to the EEOC.

See id. Thus, the Supreme Court devised a test to effect congress’s dual-

purpose for the EEOC and put in place a “mechanism to separate

information requests from enforcement requests.” Id.

This mechanism involves a two-step inquiry in considering whether

a pre-charge filing constitutes a charge: (1) the filing must allege facts

that describe the employer and the alleged unlawful employment

practice, and (2) the filing must be reasonably construed as a request for

the agency to take remedial action, based on an objective review of the

terms of the filing. See id. at 402. As the Court noted in Holowecki,

without the second element of the inquiry, any pre-charge filing could

be construed as a charge—thereby undermining the dual-purpose of the

EEOC. See id. at 401–02. The Court further explained:

If an individual knows that reporting only minimal information

to the agency will mandate the agency to notify her employer, she

may be discouraged from consulting the agency or wait until her

employment situation has become so untenable that conciliation

efforts would be futile. The result would be contrary to Congress’

expressed desire that the EEOC act as an information provider

and try to settle employment disputes through informal means.

Id. at 401. The Supreme Court adopted the Holowecki test to hedge

against this risk and support the EEOC’s dual purposes.

The Court now turns to Medlin’s argument that “[w]hen an employee

reaches out to the EEOC indicating they have been fired for a religious

belief, that is a sure indication that they want remedial action.” See ECF

No. 227 at 10. Not so. When Holowecki was decided in 2008, of about

“175,000 inquiries the agency receives each year, it dockets around

76,000 of these as charges.” Holowecki, 552 U.S. at 401. Plaintiffs ask

this Court to hold that every employee who contacts the EEOC impliedly

requests remedial action by virtue of their allegation of discrimination.

Such a holding would contravene both Holowecki and Congress’

intended dual-purpose of the EEOC. Instead, Plaintiffs must show,

based on an objective review of their filings, that they asked the EEOC

take remedial action. In the Fifth Circuit, this is evidenced by a specific

statement requesting remedial action. Medlin’s online inquiry form

contains no such statement and thus cannot constitute a charge for

purposes of United’s alleged failure to reasonably accommodate.

But Medlin’s formal November 3, 2022 charge was timely filed with

respect to her alleged unlawful termination on March 9, 2022. And

Medlin argues that even if her online inquiry form is not deemed a

charge under Holowecki, her formal November 3, 2022 charge should

encompass United’s denial of her accommodation request. See ECF No.

227 at 10 n.5. Medlin argues that United’s denial of her accommodation

request was “the first step in a continuous process, culminating in her

termination.” Id. Thus, as Medlin sees things, United’s denial of her

request was not a discrete act of discrimination, but rather one part of a

series of discriminatory acts leading to and including her March 9, 2022

termination. Id.

Under the continuing violation doctrine, plaintiffs do not have to

show all alleged discriminatory conduct occurred within the actionable

period if they demonstrate a series of related discriminatory acts, one or

more of which fall in the limitations period. See Felton v. Polles, 315 F.3d

470, 487 (5th Cir. 2002). Discrete discriminatory acts, however, are not

actionable if time-barred, even when they are related to acts complained

of in timely filed charges. See Nat’l R.R. Passenger Corp. v. Morgan, 536

U.S. 101, 113 (2002). Some discrete acts are easy to identify, including

“failure to promote, denial of transfer, or refusal to hire.” Id. at 114.

Similarly, an employer’s “failure to provide accommodations” is a

discrete act that does not qualify under the continuing violation

doctrine. See Henson v. Bell Helicopter Textron, Inc., 128 F. App’x 387,

391 (5th Cir. 2005). Accordingly, United’s denial of Medlin’s

accommodation request was not a continuing violation, it was a discrete

act. Even though Medlin did not require an accommodation until she

returned to work—she was on maternity leave when she requested an

accommodation—United’s denial of her request occurred well before the

300-day window of her EEOC charge. Accordingly, Medlin’s failure-to-

accommodate claim is time-barred and must be DISMISSED. Insofar

as she argues that her termination constituted retaliation for her

engaging in a protected activity, her retaliation claim is not time barred,

but it fails for other reasons. See supra Part (C)(2).

Rains—Rains’s claims stem from allegations that (1) on September

8, 2021, he was not allowed to request a religious accommodation and

(2) he received an inadequate accommodation in November 2021 after

his medical exemption request was granted. See ECF No. 156 at 34–36.

Rains submitted an online inquiry form to the EEOC on December 14,

2021, in which he provided his contact information, the reason for his

dispute, and factual allegations about the alleged unlawful employment

practice that occurred. See ECF No. 228-7 at 4. Rains’s online inquiry

form contains no specific statement requesting remedial action. See id.

He did not ask the EEOC to take any action until he filed his charge on

November 3, 2022—338 days after the last alleged unlawful act—nor

did any pre-charge filing contain a statement that “must be reasonably

construed as a request for the agency to take remedial action.” See

Holowecki, 552 U.S. at 402. Thus, Rains’s pre-charge filings do not

constitute a charge under Holowecki.

Rains argues that (1) his Texas Workforce Commission (“TWC”)

complaint requested remedial action and thus constitutes a charge

under Holowecki, and (2) even if it does not, his EEOC charge is timely

because it was filed within 300 days of an “ongoing violation.” See ECF

No. 227 at 9.

With respect to Rains’s first argument, Rains filed a complaint with

the TWC on September 21, 2021, in which he stated: “I hope through my

pl[ight] and that of many others that are now suffering from these

unconstitutional mandates[,] that to whom it may concern there may be

a path to assist us legally and help us return to our jobs quickly and

without [any undue delay].” ECF No. 224-8 at 5. This statement may be

a specific request for remedial action that would constitute a charge

under Holowecki. However, this statement was filed with the TWC, not

the EEOC, and the TWC declined to file a charge on his behalf because

he had not yet been placed on unpaid leave. See ECF No. 227 at 4–5.

After being placed on unpaid leave, Rains reached out to the TWC, but

was “unable to obtain help from the TWC” and subsequently submitted

a separate online inquiry form with the EEOC on December 14, 2021.

His EEOC form did not contain a similar request for remedial action.

See ECF Nos. 227 at 5; 228-7 at 2–5. Thus, none of Rains’s pre-charge

filings with the EEOC contained a statement that can be reasonably

construed as a request for remedial action. Nor can his TWC complaint

satisfy the requirements of a pre-charge filing with the EEOC. His

separate, unsuccessful complaint with the TWC was not a request for

remedial action with the EEOC, and thus does not satisfy Holowecki.

Next, Plaintiffs argue that Rains’s formal November 3, 2022 charge

was timely because United engaged in an “ongoing violation” throughout

the period that Rains received an inadequate accommodation. But as

discussed above, an employer’s “failure to provide accommodations” are

discrete acts [that] do not qualify under the continuing violation

exception.” Henson, 128 F. App’x at 391. Accordingly, United’s alleged

failure to accommodate Rains was not a continuing violation and his

November 3, 2022 EEOC charge was not timely filed. Rains’s claims

must be DISMISSED.

Castillo—Castillo’s claims stem from allegations that (1) United

initially determined in September 2021 that his accommodation request

was untimely, and (2) his October 2021 masking and testing

accommodation was unreasonable. See ECF No. 156 at 26–27. Castillo

first submitted an online inquiry to the EEOC on September 20, 2021,

but his initial inquiry was closed by the EEOC and a second file was

opened with a submission date of October 18, 2021. See ECF No. 227 at

2–4. Castillo is unable to produce the online inquiry he submitted on

either September 20, 2021 or October 18, 2021, and nothing in the

administrative record or in Castillo’s written testimony indicates that

Castillo made a specific request for remedial action in any pre-charge

filings. Castillo’s charge was filed on September 19, 2022—323 days

after October 31, 2021. See ECF No. 228-8 at 21. Accordingly, the record

does not show that Castillo timely filed any materials that can be

deemed a charge under Holowecki.

Castillo argues that his charge should be considered timely because

(1) the EEOC prepared a charge for him to sign in April 2022, and (2)

the EEOC’s administrative record referred to his pre-charge filings as

charges. See ECF No. 227 at 9. It is true that the EEOC prepared a

charge for Castillo to sign on April 12, 2022 (within the 300-day

window). See ECF No. 228-8 at 10. Castillo alleges he never received

that message and the EEOC closed Castillo’s inquiry on June 10, 2022.

See ECF No. 227 at 3. Castillo’s counsel contacted the EEOC in

September 2022 and Castillo eventually signed and submitted a formal

charge on September 19, 2022. See id. at 3. Castillo reasons that because

the EEOC prepared a charge based on his pre-charge filings, the EEOC

must have interpreted his pre-charge filings as a request for remedial

action. Consequently, Castillo argues his unproduced online inquiry

form should constitute a charge under Holowecki. See id.

A pre-charge filing, even if unsworn or unsigned, may constitute a

charge if it satisfies Holowecki’s request-to-act condition. See Vantage

Energy Servs., 954 F.3d at 755. But “the EEOC’s characterization of [a

pre-charge filing] is not dispositive. What constitutes a charge is

determined by objective criteria. See id. (citing Holowecki, 552 U.S. at

404 (“It would be illogical and impractical to make the definition of

charge dependent upon a condition subsequent over which the parties

have no control.”)). The fact that the EEOC prepared a charge for

Castillo to sign based on his pre-charge filings is not dispositive, as the

definition of a charge cannot depend on the EEOC’s treatment of an

online inquiry. Rather, the test is whether an employee’s pre-charge

filings contained a statement satisfying Holowecki’s request-to-act

condition. It did in Vantage, but it does not here. See id. at 752 (holding

employee’s pre-charge intake questionnaire satisfied the request-to-act

condition when he “check[ed] a box stating that he wanted ‘to file a

charge of discrimination’ and ‘authoriz[ing] the EEOC to look into the

discrimination.’”). Castillo’s online inquiry contained no such box, nor

can Castillo point to any statement in a timely-filed pre-charge

document that asked the EEOC to take remedial action.

For the same reason, Castillo’s second argument fails. The EEOC

record indicates an agent “viewed charge details,” referring to Castillo’s

online inquiry form. ECF No. 227 at 8. Castillo argues the EEOC’s

treatment of his inquiry as a charge is sufficient to satisfy Holowecki.

See id. But again, the EEOC’s treatment of a document as a charge is

not dispositive—the only question is whether, based on an objective

inquiry, the filing requested remedial action. Here, in the absence of

such a request, the Court will not treat Castillo’s pre-charge filing as a

charge under Holowecki. Accordingly, Castillo’s claims must be

DISMISSED.

Plaintiffs finally argue that their delay can be attributed to the

EEOC, which constitutes a basis for equitable tolling. See ECF No. 213

at 19. But the Court applies equitable tolling “when an employee seeks

information from the EEOC, and the organization gives the individual

incorrect information that leads the individual to file an untimely

charge.” Manning v. Chevron Chem. Co., LLC, 332 F.3d 874, 881 (5th

Cir. 2003). Here, Plaintiffs have not alleged that the EEOC gave them

incorrect information that led them to file an untimely charge.

Accordingly, equitable tolling does not apply.

2. Plaintiffs’ retaliation claims are not beyond the scope of their

EEOC charges.

United also asks the Court to dismiss all Plaintiffs’ retaliation claims

as beyond the scope of their EEOC charges. See ECF No. 209 at 20.

“[T]he claims an employee can bring in a lawsuit are limited to the scope

of the EEOC investigation which can reasonably be expected to grow out

of the charge of discrimination.” Madaki v. Am. Airlines, Inc., No. 4:21-

CV-0760-P, 2022 WL 227163, at *2 (N.D. Tex. Jan. 25, 2022) (Pittman,

J.) (quoting Pacheco v. Mineta, 448 F.3d 783, 789 (5th Cir. 2006)). But

an employee is not required to check the box for retaliation on her EEOC

charge to pursue a retaliation claim. See Gregory v. Ga. Dep’t of Hum.

Res., 355 F.3d 1277, 1280 (11th Cir. 2004). Provided that “[t]he facts

alleged in her EEOC charge could have reasonably been extended to

encompass a claim” for retaliation, an employee may pursue such a

claim. Id. Thus, whether a claim is beyond the scope of an employee’s

EEOC charge depends on whether the claim arises from facts alleged in

the charge. Here, as discussed in Part (C)(2), Plaintiffs’ retaliation

claims stem from the same factual allegations as their failure-to-

accommodate claims. Plaintiffs, in essence, argue that United retaliated

against them by failing to reasonably accommodate them. While these

allegations don’t support a retaliation claim, it cannot be said that the

claim falls beyond the scope of Plaintiff’s respective EEOC charges.

3. Jonas’s Title VII claims are beyond the scope of her EEOC

charge.

Finally, United asks the Court to dismiss Jonas’s Title VII claims as

beyond the scope of her EEOC charge, which relates solely to disability

discrimination. ECF No. 209 at 27; see ECF No. 210 at 15. The Court is

not constrained to the four corners of an EEOC charge when

determining the charge’s scope. See Fellows v. Univ. Restaurants, Inc.,

701 F.2d 447, 448 (5th Cir. 1983) (looking beyond initial EEOC charge

to entire resulting investigation); Patton v. Jacobs Eng’g Grp., Inc., 874

F.3d 437, 443 (5th Cir. 2017) (quoting Pacheco, 448 F.3d at 789) (“To

balance [conflicting] considerations, ‘this court interprets what is

properly embraced in review of a Title VII claim somewhat broadly, not

solely by the scope of the administrative charge itself.’”); Pacheco, 448

F.3d at 789 (“We engage in fact-intensive analysis of the statement given

by the plaintiff in the administrative charge, and look slightly beyond

its four corners, to its substance rather than its label.”). But here, the

facts alleged in Jonas’s EEOC charge could not have reasonably been

extended to encompass her Title VII claim for religious discrimination.

Plaintiffs’ Second Amended Complaint makes only a passing

mention of Jonas’s religious objection to receiving the COVID-19

vaccine. See ECF No. 156 at 31 (“Ms. Jonas also wanted to submit a

request for religious accommodation but was unable to do so because

Help Hub permitted an employee to request only one type of

accommodation.”). Jonas’s EEOC charge, on the other hand, does not

discuss religious discrimination at all:

I began my employment on or about September, 1984. My current

position is United Club Representative. On or about August 6,

2021, I was notified by my employer that it would be requiring all

employees to be fully vaccinated against Covid-19 by September

27, 2021. I am an individual with an impairment which

substantially limits one or more major life activities. My doctor

has recommended that I not take a COVID-19 vaccination

because of my disability. My employer requires me to get a

COVID-19 vaccination as a requirement of my job. During my

employment, I requested a reasonable accommodation to

Respondents Covid-19 vaccination mandate due to my disability.

My request for accommodation was approved. However,

Respondent requires that I submit to testing twice weekly and

wear a KN95 mask. The same is not required of vaccinated co-

workers. I am also assigned to work in a small, closed office. I

believe I have been discriminated against because of my

disability, in violation of the Americans with Disabilities Act of

1990, as amended. I believe that my employer discriminated

against others because of their disability in violation of the

Americans with Disabilities Act of 1990, as amended.

ECF No. 210 at 15. Even construing Jonas’s charge liberally, the Court

finds no facts to support a charge of religious discrimination. Thus, the

facts in Jonas’s EEOC charge could not have reasonably been extended

to encompass her Title VII claim for religious discrimination.

Plaintiffs did not respond to United’s argument that Jonas’s Title VII

claims are beyond the scope of her EEOC charge. Having considered the

evidence of record, the Court finds that Jonas’s Title VII religious

discrimination claim is beyond the scope of her EEOC charge and must

be DISMISSED.

E. Interactive Process Claims

Fifth, United argues that the Court should dismiss Plaintiffs’

“interactive process” claims because neither the ADA nor Title VII

“contain[] a stand-alone requirement to follow an ‘interactive process,’

let alone imposes liability for failure to do so.” ECF No. 209 at 21.

Plaintiffs, on the other hand, say that “as Plaintiffs have repeatedly

explained, they have not asserted such a claim. Rather, the lack of an

interactive process goes to the unreasonableness of United’s

accommodations.” ECF No. 213 at 21 (citing Guerra v. United Parcel

Serv., Inc., 250 F.3d 739, 2001 WL 274296, at *3 (5th Cir. 2001) (“When

an employer’s unwillingness to engage in a good faith interactive process

leads to a failure to reasonably accommodate an employee, the employer

violates the ADA.”)). Thus, Plaintiffs assert that “there is no standalone

interactive-process claim to dismiss here.” Id. United’s Reply did not

address this issue further. See ECF No. 215. Accordingly, the Court

agrees with Plaintiffs’ assertion that there is no standalone interactive-

process claim to dismiss.

F. Request for Permanent Injunction

Sixth, United argues that the Court should dismiss Plaintiffs’

request for a permanent injunction for two reasons: (1) the request is

moot since the contested vaccine policy is no longer in effect, and (2) the

Court should decline to exercise its equitable discretion to grant

injunctive relief. See ECF No. 209 at 22–25.

The doctrine of mootness is a jurisdictional matter. See Brinsdon v.

McAllen Indep. Sch. Dist., 863 F.3d 338, 345 (5th Cir. 2017). “A claim is

moot when a case or controversy no longer exists between the parties.”

Id. Mootness “can arise in one of two ways: First, a controversy can

become moot when the issues presented are no longer live. A controversy

can also become moot when the parties lack a legally cognizable interest

in the outcome.” Chevron U.S.A. v. Traillour Oil Co., 987 F.2d 1138,

1153 (5th Cir. 1993) (internal citations and quotation marks omitted).

“It is well settled that a defendant’s voluntary cessation of a

challenged practice does not deprive a federal court of its power to

determine the legality of the practice.” City of Mesquite v. Aladdin’s

Castle, Inc., 455 U.S. 283, 289 (1982). The doctrine of voluntary

cessation evaluates the risk that a defendant is engaging in “litigation

posturing” to avoid judicial review. See Yarls v. Bunton, 905 F.3d 905,

910 (5th Cir. 2018); Aladdin’s Castle, 455 U.S. at 289 n.10. Thus, when

a defendant’s voluntary cessation moots a plaintiff’s claim, the

defendant bears the “heavy burden” to make it “absolutely clear that the

allegedly wrongful behavior could not reasonably be expected to recur.”

Friends of the Earth, Inc. v. Laidlaw Envt’l. Servs., Inc., 528 U.S. 167,

189 (2000). “A controversy may remain to be settled in such

circumstances,” namely “a dispute over the legality of the challenged

practices.” United States v. W. T. Grant Co., 345 U.S. 629, 631 (1953).

Because “[t]he defendant is free to return to his old ways” once the

litigation is ended, public interest weighs in favor of “having the legality

of the practices settled.” Id.

Here, United voluntarily ended the vaccine mandate that Plaintiffs

challenge, triggering the voluntary cessation doctrine. United has not

satisfied its “heavy burden” of showing it is “absolutely clear” that the

challenged conduct could not reasonably be expected to recur. United

argues that the decision to lift the vaccine mandate was not solely the

result of United’s decision-making, but also a result of a change in the

underlying factual circumstances—the decline of the “delta variant

surge in 2021.” ECF No. 209 at 23. United argues that another COVID-

19 surge or a new pandemic is unlikely, and thus, United is unlikely to

reimpose its vaccine mandate. See id. But United falls short of showing

it is “absolutely clear” that United would not impose a vaccine mandate

in the future. Accordingly, there is an interest in having the legality of

United’s vaccine mandate settled.

In the alternative, United invites the Court to decline to exercise its

equitable discretion because “the facts and circumstances have changed

substantially.” ECF No. 209. But because there is an interest in having

the legality of United’s vaccine mandate settled, the Court declines this

invitation.

G. United’s Motion to Transfer Venue

Finally, in addition to United’s Motion to Dismiss, United has filed a

Motion to Transfer Venue. ECF No. 216. Pursuant to 28 U.S.C. § 1404,

United seeks to transfer this case to the Northern District of Illinois. See

id. at 1. Section 1404 provides that, “[f]or the convenience of parties and

witnesses, in the interest of justice, a district court may transfer any

civil action to any other district or division where it might have been

brought.” 28 U.S.C. § 1404(a). District courts have “broad discretion in

deciding whether to order a transfer.” In re Volkswagen of Am., Inc., 545

F.3d 304, 311 (5th Cir. 2008) (en banc). In assessing a motion to transfer

under § 1404(a), courts must weigh various non-exhaustive private and

public interest factors, none of which is given dispositive weight.2 Id. at

at 315 (citations omitted).

The Court finds that United’s delay in bringing this Motion and the

accompanying practical problems that would result from a transfer at

this time weigh strongly against transfer. Among other things,

transferring the case at this stage would result in increased costs and a

substantial delay in the expeditious resolution of Plaintiffs’ claims.

Further, this Court is already painfully familiar with the complexities

of this case, which again weighs against transfer. Public interest factors

do not save United’s Motion. The Northern District of Illinois, like this

Court, has a highly congested docket, a substantial part of United’s

actions occurred in this District, and this Court is deeply familiar with

the controlling law that governs this case.

The Court would have gladly entertained this Motion two years ago

when this litigation commenced, but United’s Motion comes after years

of litigation and hundreds of case filings.3

Accordingly, United’s Motion to Transfer Venue is DENIED.

CONCLUSION

For the reasons outlined above, United’s Motion to Dismiss (ECF No.

209) is GRANTED in part. United’s Motion to Transfer Venue (ECF

No. 216) is DENIED.

2The private interest factors are: “(1) the relative ease of access to sources of proof;

(2) the availability of compulsory process to secure the attendance of witnesses; (3) the

cost of attendance for willing witnesses; and (4) all other practical problems that make

trial of a case easy, expeditious and inexpensive.” In re Volkswagen of Am., 545 F.3d

at 315. The public interest factors are: “(1) the administrative difficulties flowing from

court congestion; (2) the local interest in having localized interests decided at home;

(3) the familiarity of the forum with the law that will govern the case; and (4) the

avoidance of unnecessary problems of conflict of laws [or in] the application of foreign

law.” Id.

3 This case is now one of the oldest active civil cases on the Court’s docket, yet the

progress towards resolving it has seemed painfully slow. President Biden stated that

the Covid 19 pandemic was “over” in the fall of 2022. See 60 Minutes (@60Minutes), X

(Sept. 18, 2022, 7:09 PM), https://tinyurl.com/2s35maau. The time has come to resolve

this lawsuit and move on. Transferring this case to a new court would only delay

matters further. The Court is confident that this matter will be tried or otherwise

disposed of in 2024.

All Plaintiffs’ retaliation claims under Title VII and the ADA are

DISMISSED with prejudice because United’s unpaid leave

accommodation was not retaliatory. Castillo’s failure-to-accommodate

claim is DISMISSED with prejudice as time-barred and for failure to

satisfy his prima facie discrimination case. Hamilton’s failure-to-

accommodate claim is likewise DISMISSED with prejudice for failure

to satisfy her prima facie discrimination case. Medlin’s failure-to-

accommodate claim is DISMISSED with prejudice as time-barred.

Rains’s failure-to-accommodate claims under Title VII and the ADA are

DISMISSED with prejudice as time-barred. Jonas’s Title VII failure-

to-accommodate claim is DISMISSED with prejudice as beyond the

scope of her EEOC charge. And Medlin’s failure-to-accommodate claim

is DISMISSED with prejudice as time-barred.

SO ORDERED on this 18th day of December 2023.