Pauwels v. Allied Pilots Association

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

LINDA PAUWELS, §

§

Plaintiff, §

§

v. §

§ Case No. 4:23-cv-00851-O

ALLIED PILOTS ASSOCIATION & §

AMERICAN AIRLINES, INC., §

§

Defendants. §

MEMORANDUM OPINION & ORDER

Before the Court are Defendant American Airlines, Inc.’s Motion to Dismiss and Brief in

Support (ECF No. 37); Plaintiff’s Response (ECF No. 38); and Defendant’s Reply (ECF No. 39).

After examining the relevant authorities and arguments, the Court GRANTS in part and DENIES

in part Defendant’s Motion.

I. BACKGROUND1

Plaintiff became a pilot at American Airlines (“Defendant”) in 1988. All American Airlines

pilots are represented by a union, the Allied Pilots Association (“union”).2 In 2015, after lengthy

negotiations, the union and American Airlines entered into a Joint Collective Bargaining

Agreement (“JCBA”) that governs the terms and conditions of employment for American Airlines

pilots.3 The JCBA also addresses, among other things, seniority, working hours, scheduling, and

the work various categories of pilots may perform.4

1 Unless otherwise cited, the Court’s recitation of the facts is taken from Plaintiff’s Complaint. See Pl.’s

Sec. Am. Civ. Compl., ECF No. 25. At the 12(b)(6) stage, these facts are taken as true and viewed in the

light most favorable to Plaintiff. Sonnier v. State Farm Mut. Auto. Ins., 509 F.3d 673, 675 (5th Cir. 2007).

2 Allied Pilots Association is also a defendant in this litigation but did not file a motion to dismiss

Plaintiff’s Second Amended Complaint, so “Defendant” in this Order refers only to American Airlines.

3 Johnson Aff. ¶ 2, App. 7–8, ECF No. 35.

4 Id.

Plaintiff was diagnosed with an endocrine autoimmune condition in or around 2004. She

consequently took medical leave from 2004 until 2012.

In the years since her return to work, Plaintiff has been involved in several employment

disputes with Defendant and the union. Plaintiff filed her first gender-discrimination complaint with

the Equal Opportunity Employment Commission (“EEOC”) in 2012, which resulted in a

settlement with the union and Defendant in 2016. She was exposed as a witness in a separate sex-

discrimination investigation when Defendant failed to redact her name from paperwork, and

subsequently was questioned by a union representative about her involvement as a witness. In

another instance, she was falsely accused of violating her employment contract when she accepted

an assignment while purportedly on leave. And, as recently as September 13, 2022, Plaintiff settled

another EEOC complaint with Defendant.

As a result of these disputes, Plaintiff has experienced an exacerbation of her underlying

auto-immune condition and most recently took medical leave from January to November 2022.

On or around July 1, 2022, Plaintiff submitted her first accommodation request to her managing

director. Defendant advised Plaintiff to submit her accommodation request through its centralized

accommodations portal, which she did on July 19, 2022.5

Specifically, Plaintiff requested an accommodation for “scheduling flexibility while

maintaining the Check Airman qualifications she already had.” Plaintiff became a check airman in

2015. A check airman is a pilot authorized by the airline as well as the Federal Aviation

Administration to conduct training and evaluation of line pilots (a line pilot’s main duty is to

transport cargo and passengers). Check airmen are required to work a minimum of 16 days per

month, and their schedules are set by management.6 By contrast, line pilots’ schedules are

5 Alvaredo Aff. ¶ 6, App. 2–3, ECF No. 35.

6 Johnson Aff. ¶ 7, App. 9–10, ECF No. 35.

determined through a bidding system based on seniority, which affords senior pilots like Plaintiff

flexibility to choose their schedules.7

Jessica Alvaredo, a member of Defendant’s Accommodations Team, was informed that

Plaintiff’s request was for a “hybrid position” and was not authorized by the JCBA.8 Accordingly,

on July 27, 2022, Alvaredo informed Plaintiff that Defendant would be unable to grant her

accommodation request because it violated the JCBA.9 In an email on August 1, 2022, Alvaredo

presented Plaintiff with two alternative accommodations, which Plaintiff did not respond to.10

Plaintiff asserts those alternatives were not accommodations per se, but were positions she could

have taken regardless, by virtue of seniority under the JCBA.11

Also during Summer 2022, Captain Alan Johnson, Defendant’s Managing Director of

Flight Training and Standards, had a verbal conversation with Plaintiff regarding her requested

accommodation.12 He told her he did not believe her accommodation would be granted, because it

violated the JCBA and because Defendant does not grant accommodations that would be a

violation of the JCBA.13

On or around November 21, 2022, based on a union attorney’s information that the union

would not object to (and presumably support) Plaintiff’s accommodation request, Plaintiff returned

from medical leave and underwent training to regain her check airman qualifications.14

On April 20, 2023, Plaintiff had an in-person meeting with Captain Alan Johnson and

Jessica Alvaredo to discuss Plaintiff’s accommodation request. They informed Plaintiff that

7 Id. at. ¶ 5.

8 Alvaredo Aff. ¶ 7, App. 2, ECF No. 35.

9 Id.

10 Id.

11 Pl.’s Memo. Opp. Def.’s Mot. 6, ECF No. 38.

12 Johnson Aff. ¶ 15, App. 12, ECF No. 35.

13 Id.

14 Plaintiff does not explain when or why she lost the check airman qualifications that she earned in 2015.

Defendant decided to deny her request after the union advised that it no longer supported Plaintiff’s

accommodation. At the conclusion of the meeting, Plaintiff asked to be put on reserve duty as a

line pilot because she was unable to abide by the current check airman schedule and its required

minimum work of 16 days per month.15 As a result, Plaintiff lost her check airman qualification.

On April 26, 2023, Plaintiff emailed Johnson and Alvaredo requesting that the decision be

communicated to her in writing.16 To this day, she has not received a written response.

Plaintiff identifies two male pilots who have been allowed to maintain their qualifications

while they were unable to work due to medical issues and disabilities.

Plaintiff initiated this lawsuit first against the union17 and later amended her complaint to

bring claims against Defendant, American Airlines, for unlawful failure to accommodate in

violation of the Americans with Disabilities Act of 1990 (“ADA”); discrimination on the basis of

disability in violation of the ADA; retaliation in violation of the ADA; discrimination on the basis

of sex in violation of Title VII; and retaliation in violation of Title VII.18 Defendant now moves to

dismiss Plaintiff’s Complaint pursuant to Federal Rule of Civil Procedure 12(b)(1) and 12(b)(6).19

II. LEGAL STANDARDS

A. 12(b)(1) Motion to Dismiss for Lack of Subject Matter Jurisdiction

Motions filed under Federal Rule of Civil Procedure 12(b)(1) allow a party to challenge

the subject matter jurisdiction of the district court to hear a case. FED. R. CIV. P. 12(b)(1). There

are two types of challenges to a court’s subject matter jurisdiction under Rule 12(b)(1): a “facial

attack” and a “factual attack.” See Paterson v. Weinberger, 644 F.2d 521, 523 (5th Cir. 1981). A

15 Id. at ¶ 16.

16 Id. at ¶ 18.

17 Pl.’s First Am. Compl., ECF No. 11.

18 Pl.’s Sec. Am. Civ. Compl., ECF No. 25.

19 Def.’s Mot. to Dismiss, ECF No. 37.

facial attack challenges jurisdiction based solely on the pleadings. Id. When ruling on a facial

attack, the court must presume that factual allegations in the complaint are true and determine

whether they establish subject matter jurisdiction. Id. By contrast, a Rule 12(b)(1) motion presents

a factual attack when the motion is accompanied by supporting evidence, such as affidavits, that

contradicts the jurisdictional allegations in the complaint. Id. In a factual attack, the plaintiff bears

the burden of proving by a preponderance of the evidence that the court has subject matter

jurisdiction. Id.

“It is well settled that on a 12(b)(1) motion the court . . . may even resolve issues of

contested facts.” Clark v. Tarrant County, 798 F.2d 736, 741 (5th Cir. 1986). Because at issue in a

12(b)(1) motion is the trial court’s jurisdiction—its very power to hear the case—there is

substantial authority that the trial court is free to weigh the evidence and satisfy itself as to the

existence of its power to hear the case. Williamson v. Tucker, 645 F.2d 404, 412–13 (5th Cir. 1981).

In short, no presumptive truthfulness attaches to plaintiff’s allegations, and the existence of

disputed material facts will not preclude the trial court from evaluating for itself the merits of

jurisdictional claims. Id. at 413.

Because a 12(b)(1) motion concerns a court’s power to hear the case, when a 12(b)(1)

motion is brought with other Rule 12 motions to dismiss, the 12(b)(1) motion must be addressed

first. See Ramming v. United States, 281 F.3d 158, 161 (5th Cir. 2001).

B. 12(b)(6) Motion to Dismiss for Failure to State a Claim

The Federal Rules of Civil Procedure require a complaint to contain “a short and plain

statement of the claim showing that the pleader is entitled to relief.” FED. R. CIV. P. 8(a)(2). The

Rule 8(a) pleading standard “does not require ‘detailed factual allegations,’ but it demands more

than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S.

662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007)). If a plaintiff fails

to satisfy this standard, the defendant may file a motion to dismiss under Rule 12(b)(6) for “failure

to state a claim upon which relief can be granted.” FED. R. CIV. P. 12(b)(6).

To survive a motion to dismiss under Rule 12(b)(6), a plaintiff must plead “enough facts to

state a claim to relief that is plausible on its face.” Twombly, 550 U.S. at 570. A claim is facially

plausible “when the plaintiff pleads factual content that allows the court to draw the reasonable

inference that the defendant is liable for the misconduct alleged.” Iqbal, 556 U.S. at 678. Unlike a

“probability requirement,” the plausibility standard instead demands “more than a sheer possibility

that a defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 570). Where a complaint

contains facts that are “merely consistent with a defendant’s liability, it stops short of the line

between possibility and plausibility of entitlement to relief.” Id. (quoting Twombly, 550 U.S. at

557) (internal quotation marks omitted).

In reviewing a Rule 12(b)(6) motion, the court must accept all well-pleaded facts in the

complaint as true and view them in the light most favorable to the plaintiff. Sonnier v. State Farm

Mut. Auto. Ins., 509 F.3d 673, 675 (5th Cir. 2007). However, the court may not accept legal

conclusions as true. Iqbal, 556 U.S. at 678–79. To avoid dismissal, pleadings must show specific,

well-pleaded facts rather than conclusory allegations. Guidry v. Bank of LaPlace, 954 F.2d 278,

281 (5th Cir. 1992). “When there are well-pleaded factual allegations, a court should assume their

veracity and then determine whether they plausibly give rise to an entitlement to relief.” Iqbal, 556

U.S. at 679. A court ruling on a motion to dismiss “may rely on the complaint, its proper

attachments, documents incorporated into the complaint by reference, and matters of which a court

may take judicial notice.” Randall D. Wolcott, M.D., P.A. v. Sebelius, 635 F.3d 757, 763 (5th Cir.

2011) (citation and internal quotation marks omitted).

III. ANALYSIS

In her Second Amended Complaint, Plaintiff brought three ADA claims: (1) failure to

accommodate, (2) disability discrimination, and (3) retaliation; and two Title VII claims: (4) sex

discrimination, and (5) retaliation.20 Defendant now moves to dismiss each claim under Rule

12(b)(1) for preclusion under the Railway Labor Act (“RLA”). Alternatively, Defendant moves to

dismiss three of Plaintiff’s claims under Rule 12(b)(6) for failure to state a claim; namely, disability

discrimination, disability retaliation, and sex retaliation.

Having reviewed the parties’ briefing, evidence, and applicable law, the Court determines

that, at this stage of the proceedings, Plaintiff has proven by a preponderance of the evidence that

the Court has subject matter jurisdiction with respect to all claims. See Paterson, 644 F.2d at 523.

However, the Court finds that the three claims Defendant moves to dismiss under Rule 12(b)(6)

fail to state a claim upon which relief can be granted.

A. RLA Preclusion

The Court has subject matter jurisdiction over Plaintiff’s claims because the adjudication

of her factual questions is not “conclusively resolved” by interpreting the JCBA. See Consol. Rail

Corp. v. Ry. Lab. Executives’ Ass’n, 491 U.S. 299, 305 (1989).

The RLA, which was amended in 1936 to cover the airline industry, sets up a mandatory

arbitral mechanism to handle certain grievances arising out of collective-bargaining agreements.

45 U.S.C. § 151 et seq.; see Hawaiian Airlines Inc. v. Norris, 512 U.S. 246, 248 (1994). The

collective-bargaining process, which “lies at the core of our national labor policy,” is “aimed at

effecting workable and enforceable agreements between management and labor.” Trans World

Airlines, Inc. v. Hardison, 432 U.S. 63, 79 (1977). “A collective bargaining agreement is an effort

20 Pl.’s Sec. Am. Civ. Compl., ECF No. 25.

to erect a system of industrial self-government.” United Steelworkers of Am. v. Warrior & Gulf

Nav. Co., 363 U.S. 574, 580 (1960). It “covers the whole employment relationship,” including the

rights and duties of employees and management. Id. at 578–79. “The grievance machinery under

a collective bargaining agreement is at the very heart of the system of industrial self-government.”

Id. at 580.

In 1972, the Supreme Court clarified that disputes classified as “minor” disputes must be

resolved in arbitration before the Railway Labor Board, depriving federal and state courts of

jurisdiction over such claims. See Andrews v. Louisville & Nashville R.R. Co., 406 U.S. 320, 322

(1972) (dispelling “the notion that the grievance and arbitration procedures provided for minor

disputes in the Railway Labor Act are optional, to be availed of as the employee or the carrier

chooses”). In practical terms, if a dispute brought before a court is a “minor” dispute, then the RLA

precludes or preempts that claim. Compare Carmona v. Sw. Airlines Co., 536 F.3d 344, 348 (5th

Cir. 2008) (RLA preclusion) with Norris, 512 U.S. at 246 (RLA preemption).

A “minor” dispute “grow[s] out of grievances or out of the interpretation or application of

[collective-bargaining] agreements.” 45 U.S.C. § 153(i). The Supreme Court has further clarified

that a dispute is “minor” if it “may be conclusively resolved by interpreting the existing

agreement.” Consol. Rail Corp., 491 U.S. at 305 (emphasis added). “To state that a claim can be

conclusively resolved by interpreting a CBA is another way of saying that the dispute does not

involve rights that exist independent of the CBA.” Carmona, 536 F.3d at 348 (internal quotations

and citation omitted).

The Fifth Circuit in Carmona v. Southwest Airlines Company held that a male flight

attendant’s allegations of Title VII sex discrimination and ADA disability discrimination were not

precluded by the RLA. Id. at 351. The Fifth Circuit did not per se shield Title VII and ADA claims

from the RLA’s preclusive sweep. Id. at 351. Rather, it considered whether the dispute could be

“conclusively resolved” by interpreting the CBA and decided that the factual allegations contained

in those claims did not require an interpretation of the CBA. Id. The court interpreted the plaintiff’s

allegations to mean that “CBA procedures were applied in a discriminatory manner, not that CBA

procedures were fundamentally discriminatory.” Id. at 349. Therefore, it concluded that provisions

of the CBA were relevant to the plaintiff’s claims, but not dispositive of them. Id.

Plaintiff’s claims here are based on two reasons: Defendant’s denial of her

accommodations and Defendant’s motives for denying her request. In her failure-to-accommodate

claim, she alleges that Defendant rejected her accommodations, without explanation, neglecting

its duty under the ADA to engage in interactive dialogue to establish reasonable

accommodations.21 In her discrimination claims, she alleges that other similarly situated male

pilots were granted the accommodations that she was denied.22 And finally, she alleges that she

was retaliated against for requesting accommodations and for initiating or participating in other

proceedings against Defendant.23

Defendant maintains that it denied Plaintiff’s accommodation because she requested a

position that would have violated the JCBA.24 Defendant cites to cases like Pritchard v. American

Airlines, Inc. for the proposition that an accommodation that violates a CBA is unreasonable.25

See 708 F. Supp. 3d 861, 867 (N.D. Tex. 2023) (“Absent extraordinary circumstances, it is

unreasonable to require companies to violate binding CBAs to accommodate disabled

employees.”). Accordingly, Defendant argues that the JCBA is dispositive because the Court

21 Pl.’s Sec. Am. Civ. Compl. ¶¶ 36–38, 82–88, ECF No. 25.

22 Id. at ¶¶ 43, 120; Pl.’s Memo. Opp. Def.’s Mot. 22, ECF No. 38.

23 Pl.’s Sec. Am. Civ. Compl. ¶¶ 99–109, 122–34, ECF No. 25.

24 See, e.g., Def.’s Mot. Dismiss 1, 20, ECF No. 37.

25 Id. at 21.

would not be able to reach the merits of Plaintiff’s claim—the reasonableness of the

accommodation—without interpreting specific provisions in the JCBA.26 Further, to pose a factual

attack on jurisdiction, Defendant submits into evidence relevant portions of the JCBA, employee

declarations, and email exchanges regarding Plaintiff’s accommodation request.27

Because Defendant factually attacks jurisdiction by attaching exhibits, Plaintiff must show

by a preponderance of the evidence that jurisdiction exists. See Paterson, 644 F.2d at 523. To do

so, Plaintiff need only convince the Court that adjudication of her factual questions does not

depend on the JCBA for resolution. See Carmona, 536 F.3d at 351 n.25 (citing Brown v. Illinois

Cent. R.R. Co., 254 F.3d 654 (7th Cir. 2001)). And the Court finds that she satisfies her burden.

While the precise accommodation that Plaintiff sought is contested, the Court’s analysis

does not hinge on the resolution of that question. Plaintiff maintains that she wanted “scheduling

flexibility” (i.e., a reduced workload to manage fatigue from her autoimmune condition, while

maintaining her check airman certification that allowed her to train other pilots in flight

simulators).28 But in Defendant’s words, Plaintiff sought a “hybrid position,” working as a line

pilot, flying two to three trips per month, while continuing to conduct trainings in flight simulators

using her check airman certification.29 In any event, it appears that Plaintiff requested some

variation of these two accommodations,30 and her request was denied.31

Defendant claims that its hands were tied by the JCBA—that is, it could not grant Plaintiff

an accommodation without violating the terms of the JCBA.32 But the record does not support this

26 Id.

27 App. Supp. Def.’s Mot. Dismiss, ECF No. 35.

28 See, e.g., Pl.’s Memo. Opp. Def.’s Mot. 18, ECF No. 38.

29 Alvaredo Aff. ¶ 9, App. 2, ECF No. 35; Johnson Aff. ¶ 16, App. 7, ECF No. 35.

30 See Rosenthal Aff., App. 135–36, ECF No. 35.

31 Pl.’s Sec. Am. Civ. Compl. ¶ 37, ECF No. 25.

32 See, e.g., Def.’s Mot. to Dismiss 10, ECF No. 37; Def.’s Reply 5, ECF No. 39.

claim. In an email between Defendant and the union, Defendant presented the union with the “two

different types of accommodations” discussed above, and asked “which, if any, [it] would support

as a deviation from the [JCBA].”33 The union responded that it would not object to either (subject

to a few qualifications) and then reversed its position on the first accommodation (the hybrid

position) in a follow-up email several days later.34 But the union told Defendant that it would

support the second accommodation—that is, “it would [a]llow [Plaintiff] to work as a [check

airman] with a reduced monthly schedule less than the contractually-allowed 16-day month.”35

And yet, Defendant now argues that “the only way [Plaintiff] could work less than 16 days

per month was if she no longer remained [in her check airman role].”36 If the union would have

permitted it, and if Plaintiff’s allegation is true that other male pilots were “allowed . . . to maintain

their statuses while they were unable to work,”37 then Defendant cannot now claim that this

accommodation is foreclosed by the JCBA. Indeed, the very premise of Defendant’s question to

the union (i.e., which, if any, deviations from the JCBA the union would permit) suggests that

Defendant is able to depart from the JCBA when granting accommodations. Thus, the JCBA does

not “conclusively resolve” whether accommodations are granted.

Defendant leans heavily on Pritchard to support its argument that the JCBA is dispositive

of Plaintiff’s claims. But Pritchard is distinguishable in a few ways. In that case, the union filed a

grievance against the airline company for violating the JCBA by exempting disabled employees

from mandatory overtime without considering seniority. 708 F. Supp. 3d at 863. As part of its

settlement, the airline agreed it would accommodate disabled employees “in a way that didn’t

33 See Rosenthal Aff., App. 135–36, ECF No. 35.

34 Id. at App. 134–35.

35 Id. at App. 135–36.

36 Id.

37 Pl.’s Sec. Am. Civ. Compl. ¶ 120, ECF No. 25.

violate the JCBA’s seniority system.” Id. The airline proceeded to withdraw the plaintiff’s

accommodations—and those of other similarly situated employees. Id. at 867. The plaintiff sued

the airline for discrimination under the ADA, and the court held that it lacked jurisdiction to hear

the claim. Id. at 868.

Unlike Plaintiff here, the plaintiff in Pritchard was not alone. He was treated the same as

similarly situated employees based on an arbitration agreement, which had effectively disclaimed

the “reasonableness” of the accommodation already (given the interference with the JCBA’s

seniority provisions and the rights of senior employees). With those issues off the table, the JCBA

was dispositive of the issue. But here, Defendant’s motivations in denying accommodations are

still in dispute because Plaintiff raises possible evidence of disparate treatment between her and

other named male employees.38 And Defendant has not identified how Plaintiff’s accommodation

would interfere with the rights of other employees under the JCBA.39 At best, Defendant can only

“retroactively proffer[]”40 that violating the terms of the JCBA to accommodate Plaintiff would

have caused “undue hardship,”41 and thus, was its “non-discriminatory reason”42 for denying

accommodations.

Defendant explains that the Court will inevitably have to interpret the JCBA to analyze

Defendant’s proffered reason for denying Plaintiff’s accommodation under the McDonnell

38 Pl.’s Sec. Am. Civ. Compl. ¶¶ 46, 120, ECF No. 25.

39 It is unclear whether a sheer violation of a CBA’s terms, without more, is a reasonable basis to deny

accommodations. The Supreme Court has held that an employer cannot be expected to grant an

accommodation that would infringe on the rights of other employees. See Trans World Airlines, 432 U.S.

at 81 (“It would be anomalous to conclude that by ‘reasonable accommodation’ Congress meant that an

employer must deny the shift and job preference of some employees, as well as deprive them of their

contractual rights, in order to accommodate or prefer the religious needs of others.”).

40 Pl.’s Memo. Opp. Def.’s Mot. 20, ECF No. 38.

41 Def.’s Reply 6, ECF No. 39.

42 Def.’s Mot. to Dismiss 20, ECF No. 37.

Douglas burden-shifting framework.43 Defendant cites to the Fifth Circuit’s decision in Reece v.

Houston Lighting & Power Company for the proposition that “interpretation of the CBA is ‘made

necessary by an employer defense’” in discrimination and retaliation cases.44 79 F.3d 485, 487

(5th Cir. 1996). But the Fifth Circuit in Carmona declined to extend Reece. 536 F.3d at 350. In

Carmona, the court disregarded the defendant’s “proffered [ . . . ] non-discriminatory reason” in

evaluating whether the CBA controlled the dispute, focusing instead on the plaintiff’s allegations.

Id. at 347–51. And it cited to its sister circuit in Brown v. Illinois Central Railroad Company for

the contention that “an employer cannot ensure the preclusion of a plaintiff’s claim merely by

asserting certain CBA-based defenses to what is essentially a non-CBA-based claim.” Id. at n.21

(citing Brown, 254 F.3d at 654).

Heeding Carmona, the Court concludes that Defendant’s motive for denying

accommodations appears at the heart of each of Plaintiff’s failure-to-accommodate,

discrimination, and retaliation claims. Plaintiff alleges, among other things, that others received

the accommodation she was denied,45 that no real accommodation was ever offered to her,46 and

that Defendant did not offer an explanation for denying her request.47 Accordingly, she shows “by

a preponderance of the evidence” that “consideration of the CBA as applied to Title VII and the

ADA—not interpretation of the CBA itself—is what is required to resolve [her] claims.” Carmona,

536 F.3d at 349–50.

Therefore, the Court has jurisdiction to determine whether Plaintiff’s civil rights under

those statutes have been violated. See id. at 351 (finding as “further evidence” to support its holding

43 Id. (citing McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973)).

44 Id. at 26–27.

45 Pl.’s Sec. Am. Civ. Compl. ¶¶ 46, 120, ECF No. 25.

46 Pl.’s Memo. Opp. Def.’s Mot. 6, ECF No. 38.

47 Pl.’s Sec. Am. Civ. Compl. ¶¶ 36–38, 82–88, ECF No. 25.

that the plaintiff “allege[d] Title VII and ADA violations, as opposed to violations of the CBA

itself”); see also id. at 348 (“To state that a claim can be ‘conclusively resolved’ by interpreting a

CBA ‘is another way of saying that the dispute does not involve rights that exist independent of

the CBA.’” (citing Norris, 512 U.S. at 265)).

B. 12(b)(6) Motion to Dismiss for Failure to State a Claim

Because the Court has jurisdiction over Plaintiff’s claims, the Court now analyzes whether

Plaintiff plausibly states a claim for disability discrimination, disability retaliation, and sex

retaliation. The Court concludes that Plaintiff does not and orders that those claims be

DISMISSED with prejudice.

1. Count VI: ADA Disability Discrimination (42 U.S.C. § 12112)

Plaintiff’s disability discrimination claim under the ADA fails. A prima facie case of

disability discrimination requires a plaintiff to prove: (1) that she has a disability; (2) that she was

qualified for the job; and (3) that she was subject to an adverse employment decision on account

of her disability. Zenor v. El Paso Healthcare Sys., Ltd., 176 F.3d 847, 853 (5th Cir. 1999).

Defendant argues that Plaintiff fails to plead the third element—that Plaintiff was subject

to an adverse employment decision on account of her disability.48 In response, Plaintiff

conclusively asserts that Defendant’s alleged failure to engage in the interactive process is

evidence of a causal connection.49 But a failure to engage in the interactive process only constitutes

adverse action; it does not establish that she suffered adverse action because of her disability. Nor

can Plaintiff allege, as the basis for a causal connection, that she received less favorable treatment

than non-disabled employees, because the male employees she claims received accommodations

48 Def.’s Mot. to Dismiss 27–28, ECF No. 37.

49 Pl.’s Memo. Opp. Def.’s Mot. 21–22, ECF No. 38.

had medical issues or disabilities themselves.50 Plaintiff therefore contradicts or, at the very least,

undermines her pleadings when she asks the Court to allow her to explore which of those men had

disabilities and which did not.51

Accordingly, because Plaintiff fails to plead factual allegations showing that she was

denied accommodations because of her disability, the Court GRANTS Defendant’s Motion with

respect to Plaintiff’s disability discrimination claim.

2. Count VII: ADA Retaliation (42 U.S.C. § 12112)

Plaintiff’s claim for disability retaliation under the ADA also fails. The ADA prohibits an

employer from “discriminat[ing] against any individual because such individual has opposed any

act or practice made unlawful by [the ADA] or because such individual made a charge, testified,

assisted, or participated in any manner in an investigation, proceeding, or hearing under [the

ADA].” 42 U.S.C. § 12203(a). To establish a prima facie case of unlawful retaliation under the

ADA, the plaintiff must show that: (1) she engaged in an activity protected by the ADA, (2) she

suffered an adverse employment action, and (3) there is a causal connection between the protected

activity and the adverse action. Lyons v. Katy Indep. Sch. Dist., 964 F.3d 298, 303–04 (5th Cir.

2020).

“A ‘causal link’ is established when the evidence demonstrates that ‘the employer’s

decision to terminate was based in part on knowledge of the employee’s protected activity.’”

Medina v. Ramsey Steel Co., 238 F.3d 674, 684 (5th Cir. 2001) (quoting Sherrod v. Am. Airlines,

Inc., 132 F.3d 1112, 1122 (5th Cir. 1998)). “Close timing between an employee’s protected activity

and an adverse action against him may provide the ‘causal connection’ required to make out a

prima facie case of retaliation.” Swanson v. Gen. Servs. Admin., 110 F.3d 1180, 1188 (5th Cir.

50 Pl.’s Sec. Am. Civ. Compl. ¶ 43, ECF No. 25.

51 Pl.’s Memo. Opp. Def.’s Mot. 22, ECF No. 38.

1997). But such temporal proximity must generally be “very close.” Clark Cty. Sch. Dist. v.

Breeden, 532 U.S. 268, 273 (2001).

Defendant argues that Plaintiff fails to adequately plead a causal connection between

Plaintiff’s protected activity and the adverse action taken against her.52 Plaintiff alleges that

Defendant was “aware of” Plaintiff’s request for accommodation.53 But it is not enough for the

employer to simply be aware of the protected activity. Plaintiff must show that the denial of

accommodations is based in part on such awareness. Medina, 238 F.3d at 684. Otherwise, any

employer who denies an employee’s accommodation request, and is thus aware of it, may be liable

for retaliation.

Plaintiff appears to believe that “the chronology of [Plaintiff’s] request for accommodation,

[Defendant’s] protracted delay in responding, and [Defendant’s] subsequent denial of her request

without providing either an explanation or engaging in an interactive process”54 is evidence of

retaliation. But Plaintiff does not explain how this “chronology” suffices to show “very close”

temporal proximity, because the request for accommodation and subsequent denial were separated

by a period of nine months. C.f. Raggs v. Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir.

2002) (holding that a five-month lapse, without other evidence of retaliation, is not close enough).

And Plaintiff does not otherwise make an argument for the Court to consider. Even assuming

Plaintiff’s argument is that Defendant acted in bad faith in denying accommodations, the Court

finds that these allegations “stop[] short of the line” showing “plausibility of entitlement to relief”

because such facts are “merely consistent with a defendant’s liability.” Iqbal, 556 U.S. at 678

(quoting Twombly, 550 U.S. at 557) (emphasis added) (internal quotation marks omitted).

52 Def.’s Mot. to Dismiss 29, ECF No. 37.

53 Pl.’s Sec. Am. Civ. Compl. ¶ 106, ECF No. 25.

54 Pl.’s Memo. Opp. Def.’s Mot. 18, ECF No. 38.

Therefore, because Plaintiff fails to adequately plead a causal connection to state a claim

for retaliation, the Court GRANTS Defendant’s Motion to Dismiss with respect to Plaintiff’s

disability retaliation claim.

3. Count IX: Title VII Retaliation (42 U.S.C. § 2000(e))

Plaintiff’s sex retaliation claim under Title VII likewise fails. Title VII makes it unlawful

for an employer “to discriminate against any of [its] employees. . . . because [she] has made a

charge. . . . or participated in any manner in an investigation of discrimination.” 42 U.S.C. § 2000e.

Thus, to successfully plead a claim of retaliation under 42 U.S.C. § 2000, Plaintiff must

demonstrate three elements: “(1) she engaged in a protected activity; (2) she suffered an adverse

employment action; and (3) a causal connection exists between the protected activity and the

adverse employment action.” Saketkoo, 31 F.4th at 1000 (internal quotation marks and citation

omitted). The requirements to establish a causal connection for retaliation under Title VII are the

same as they are under the ADA. See Feist v. Louisiana, Dep’t of Just., Off. of the Atty. Gen., 730

F.3d 450, 454 (5th Cir. 2013) (applying the same legal standard to Title VII and ADA retaliation

claims).

Defendant argues that Plaintiff fails to properly plead the third element—that Plaintiff was

subject to an adverse employment decision on account of her disability.55 Like her ADA retaliation

claim, Plaintiff appears to assert that a causal connection exists “based on chronology of

[Plaintiff’s] EEO complaints, request for accommodation, [Defendant’s] refusal to engage in an

interactive process and protracted delay in responding to Plaintiff’s request for accommodation,

and [Defendant’s] subsequent denial of accommodation.”56

55 Def.’s Mot. to Dismiss 29, ECF No. 37.

56 Pl.’s Memo. Opp. Def.’s Mot. 19, ECF No. 38.

The Court’s analysis is the same here as it was under the ADA. Plaintiff does not explain

how this “chronology” suffices to show “very close” temporal proximity, because the June 2022

EEO complaint and subsequent denial of her request for accommodations were separated by a

period of ten months. C.f. Raggs v. Miss. Power & Light Co., 278 F.3d 463, 472 (5th Cir. 2002).

And Plaintiff weakens her own account when she asserts that she has plausibly pleaded a

claim for sex retaliation because “with respect to [the union], [Plaintiff] has been in a near-constant

state of protected activity.”57 American Airlines—the relevant Defendant in this instant dispute—

stands on its own. Plaintiff’s protected activity with respect to the union and any evidence of

retaliation on the part of the union do not allow the Court to infer retaliation on the part of

Defendant. And even assuming that Defendant acted with bad faith when it denied Plaintiff’s

accommodations, the Court finds that these allegations “stop[] short of the line” showing

“plausibility of entitlement to relief” because such facts are “merely consistent with [Defendant’s]

liability.” Iqbal, 556 U.S. at 678 (quoting Twombly, 550 U.S. at 557) (emphasis added) (internal

quotation marks omitted).

Therefore, because Plaintiff fails to adequately plead a causal connection to state a claim

for retaliation, the Court GRANTS Defendant’s Motion to Dismiss with respect to Plaintiff’s sex

retaliation claim.

IV. LEAVE TO AMEND

Plaintiff requests “leave to amend her Complaint further if deemed necessary by the

Court,”58 but the Court does not find it necessary. If a plaintiff’s pleadings are deficient under Rule

12(b)(6), a district court should “freely give leave [to amend] when justice so requires.” FED. R.

CIV. P. 15(a)(2). Rule 15(a) even “evinces a bias in favor of granting leave to amend.” Herrmann

57 Id. at 30.

58 Pl.’s Memo. Opp. Def.’s Mot. 23, ECF No. 38.

Holdings Ltd. v. Lucent Techs. Inc., 302 F.3d 552, 566 (5th Cir. 2002). But “leave to amend under

Rule 15 is by no means automatic.” Goldstein v. MCI WorldCom, 340 F.3d 238, 254 (5th Cir.

2003). One of the permissible reasons for denying a request for leave to amend is if the amendment

would be futile. Id. Here, any proposed amendments would be futile, and Plaintiff does not

otherwise propose how she would amend her Complaint.

With respect to her disability discrimination claim, Plaintiff states that she “should be

permitted to amend [her Complaint] to add allegations of fact that she was treated less favorably

than non-disabled union members.”59 But this is the second motion to dismiss identifying this

deficiency (i.e., that Plaintiff fails to identify non-disabled comparators).60 And despite having

awareness of it, Plaintiff did not correct it in her Second Amended Complaint. Plaintiff now claims

she “ought to be able to discover which of these men had disabilities and which did not.”61 But

this is barred by Twombly. 550 U.S. at 561 (rejecting a pleading standard based on “the prospect

of unearthing direct evidence” or in which “a plaintiff might later establish some ‘set of

[undisclosed] facts’ to support recovery”).

Likewise, concerning Plaintiff’s retaliation claims, she does not propose how she would

cure any deficiencies. Plaintiff was “aware of [Defendant’s] objections to [her] complaint as

written (because the objections appeared in [Defendant’s] principal motion),” but she does “not

demonstrate to the [C]ourt how [she] would replead [a causal connection] more specifically if

given the opportunity.” See Goldstein, 340 F.3d at 254–55.

Accordingly, the Court denies Plaintiff’s request for leave to amend.

59 Id. at 2.

60 See Mem. Op. & Order 14–15, ECF No. 19.

61 Pl.’s Memo. Opp. Def.’s Mot. 22, ECF No. 38.

V. CONCLUSION

For the foregoing reasons, the Court GRANTS in part and DENIES in part Defendant

American Airlines, Inc.’s Motion to Dismiss Plaintiff's Second Amended Complaint. The Court

holds that it has subject matter jurisdiction over all claims under Rule 12(b)(1), but it DISMISSES

with prejudice Counts VI (ADA discrimination), VII (ADA retaliation), and IX (Title VII

retaliation) for failure to state a claim under Rule 12(b)(6).

SO ORDERED on this 10th day of October, 2024.

fab flak

UNITED STATES DISTRICT JUDGE

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