The opinion
In the
United States Court of Appeals
For the Seventh Circuit
____________________
No. 25-1649
YUBO MIAO,
Plaintiff-Appellant,
v.
UNITED AIRLINES, INC.,
Defendant-Appellee.
____________________
Appeal from the United States District Court for the
Northern District of Illinois, Eastern Division.
No. 24 C 01345 — Charles P. Kocoras, Judge.
____________________
ARGUED DECEMBER 11, 2025 — DECIDED JANUARY 13, 2026
____________________
Before RIPPLE, SCUDDER, and KIRSCH, Circuit Judges.
KIRSCH, Circuit Judge. Yubo Miao alleges that—after
boarding a United Airlines aircraft—he was singled out for
harsh treatment by a flight attendant and ultimately kicked
off the plane because of his race. He filed this lawsuit against
the airline, alleging violations of Title VI of the Civil Rights
Act of 1964 and 42 U.S.C. § 1981. The district court granted
United’s motion to dismiss for failure to state a claim. Because
2 No. 25-1649
there’s no plausible allegation that Miao was discriminated
against, we affirm.
I
This appeal arises from a motion to dismiss, which means
we accept all well-pleaded allegations of fact as true and draw
all reasonable inferences in the plaintiff’s favor. Alarm Detec-
tion Sys., Inc. v. Village of Schaumburg, 930 F.3d 812, 821 (7th
Cir. 2019). Yubo Miao, an American citizen of Chinese de-
scent, boarded a United Airlines flight from Chicago to San
Diego. As he came down the aisle, a white flight attendant
stared at him. Miao then placed his luggage—two suitcases
and a lunch bag—in the overhead bin and took his seat.
The same flight attendant asked Miao to place his lunch
bag under his seat, but Miao instead put it on the empty seat
next to him. The flight attendant asked Miao a second time to
move his lunch under his seat, but Miao responded that the
bag had food in it, and so he would put it under the seat when
other passengers in the seats next to him arrived. In response,
the flight attendant yelled at Miao and threatened to tell the
captain of the aircraft, at which point Miao immediately
moved his lunch under his seat. Another passenger told Miao
that he thought the flight attendant had acted disrespectfully.
Soon after Miao’s encounter with the flight attendant, a
United Airlines supervisor told Miao that he had to leave the
plane. While Miao had not made physical contact with the
flight attendant, she claimed that Miao had hit her, and the
aircraft’s captain decided that Miao should be removed. Miao
exited the plane.
Elsewhere in the overhead bins on the same flight there
was similar luggage to what Miao had brought aboard: two
No. 25-1649 3
suitcases and a bag of similar or slightly larger size than
Miao’s luggage. Those bags belonged to a white passenger,
but that person was not asked to move their bags, confronted
by flight attendants, or removed from the aircraft.
Miao filed a complaint with United, alleging race discrim-
ination. United initially banned him from flying on its aircraft,
but later relented, and allowed Miao to fly with the company
again. Miao sent the airline a demand letter and filed a com-
plaint with the U.S. Department of Transportation. On a later
flight, a United employee stopped Miao from boarding, he
was delayed for about 30 minutes, and he was repeatedly
asked if he intended to follow federal regulations.
Miao filed this lawsuit in federal court, bringing claims
under Title VI of the Civil Rights Act and 42 U.S.C. § 1981.
United moved to dismiss and the district court granted that
motion without prejudice. But the district court nowhere
mentioned the possibility of amending the complaint and
concluded by noting “Civil case terminated.” Miao appeals
only as to his § 1981 claim.
II
We review a district court’s dismissal for failure to state a
claim de novo. Fosnight v. Jones, 41 F.4th 916, 921 (7th Cir.
2022). To withstand dismissal, a complaint must “state a claim
to relief that is plausible on its face.” Ashcroft v. Iqbal, 556 U.S.
662, 678 (2009). Speculative allegations, standing on their
own, are not enough. Id.
Before proceeding to the merits, a word about jurisdiction.
We may hear appeals from all “final decisions” of the district
courts. 28 U.S.C. § 1291. In this case, dismissal was without
prejudice, which generally doesn’t qualify. See Hernandez v.
4 No. 25-1649
Dart, 814 F.3d 836, 840 (7th Cir. 2016). But § 1291 is to be read
practically, not technically, meaning rulings that “terminate
an action” count as final decisions. Gelboim v. Bank of Am.
Corp., 574 U.S. 405, 408–09 (2015). Because the court below
noted that the case was terminated, there’s reason to believe
the district judge was finished. We’re also confident in our ju-
risdiction because Miao stipulated at oral argument that there
was nothing left to do in the district court. See Doermer v. Ox-
ford Fin. Grp., 884 F.3d 643, 647–48 (7th Cir. 2018).
Turning to the complaint, the question is whether Miao
plausibly alleged a claim under § 1981. That law protects “the
equal right … to make and enforce contracts without respect
to race.” Domino’s Pizza, Inc. v. McDonald, 546 U.S. 470, 474
(2006) (citation modified). To allege this discrimination claim,
Miao must plead that, but for his race, he would not have suf-
fered the loss of a legally protected right to make and enforce
a contract. Comcast Corp. v. Nat’l Ass’n of Afr. Am.-Owned Me-
dia, 589 U.S. 327, 340–41 (2020).
Miao argues that he plausibly alleged discrimination be-
cause (1) the flight attendant stared him down as he entered
the aircraft, (2) other non-Asian passengers were allowed to
place carry-on bags like Miao’s in the overhead bins without
being asked to move them, (3) the flight attendant overreacted
to Miao placing his lunch box on an empty seat, (4) the flight
attendant concocted a story about Miao hitting her as a pre-
text for his removal, and (5) Miao was later scrutinized when
he attempted to board a different United flight.
These allegations do not add up to a § 1981 claim. Neither
the flight attendant nor any other representative of the airline
referenced Miao’s race. That the flight attendant is white and
Miao non-white, that she stared at Miao as he entered the
No. 25-1649 5
aircraft, forcefully requested him to follow her instructions,
made a false allegation of physical assault, and that United
later subjected Miao to extra scrutiny do not support an infer-
ence of discrimination. That’s because none of those facts, if
true, tend to show that Miao was singled out because of his
race. See Kaminski v. Elite Staffing, Inc., 23 F.4th 774, 776 (7th
Cir. 2022) (considering claims for discrimination under Title
VII and the ADEA); Smith v. Chi. Transit Auth., 806 F.3d 900,
904 (7th Cir. 2015) (“The legal analysis for discrimination
claims under Title VII and § 1981 is identical.”).
The only possible allegation that suggests Miao was dis-
criminated against is the experience of a white passenger on
board the aircraft. But that allegation isn’t enough, because
there are obvious distinctions between what Miao alleges he
did—repeatedly disobeying flight crew instructions—and
what his proposed comparator did (bringing onto the aircraft
the same amount of baggage as Miao did and stowing it in the
overhead bin). Even focusing more narrowly on the flight at-
tendant’s initial request to move the lunch bag, it’s not rea-
sonable to infer that Miao was discriminated against because
he was asked to move a bag while a white passenger was not.
Miao argues that he did not ignore or defy instructions.
There’s a conclusory allegation to that effect, but it conflicts
with detailed factual allegations in the complaint and should
be set aside. See Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th
Cir. 2008) (“[O]ur pleading rules do not tolerate factual incon-
sistencies in a complaint.”).
Miao wasn’t required to allege that he was similarly situ-
ated to someone else to state a § 1981 claim. See Carlson v. CSX
Transp., Inc., 758 F.3d 819, 827 (7th Cir. 2014) (applying Title
VII and noting that a “plaintiff is not required to identify
6 No. 25-1649
similarly situated comparators at the pleading stage”). But in
this case, the experience of a possible comparator is the only
allegation that suggests what happened to Miao had anything
to do with race. And because that comparison doesn’t hold up
to even the slightest scrutiny—as required by Rule 12(b)(6)—
it’s not enough to make Miao’s claim plausible. See Katti v.
Arden, 161 F.4th 217, 226–27 (4th Cir. 2025) (affirming dismis-
sal of a § 1981 claim because a complaint fell “well short of
alleging a similarly situated comparator” and otherwise re-
lied on speculative allegations); Joyner v. Morrison & Foerster
LLP, 140 F.4th 523, 529–33 (D.C. Cir. 2025) (affirming dismis-
sal of a § 1981 claim because “general allegations about com-
parators do not provide a meaningful benchmark” to decide
if differential treatment was racially motivated); cf. Tamayo,
526 F.3d at 1085 (a plaintiff stated a Title VII claim when she
alleged that she and potential comparators were similarly sit-
uated). We agree with our dissenting colleague about the ap-
plicable legal framework. Our disagreement is only over how
to apply those principles in this case. As we see it, there is
nothing here, aside from conclusory allegations, to plausibly
allege discrimination.
To survive a motion to dismiss, Miao needed to allege
enough facts to allow for a plausible inference that United im-
paired his right to enforce a contract because of race. See Com-
cast Corp., 589 U.S. at 341. While the complaint provides a de-
tailed account of what happened aboard United’s aircraft, we
can only speculate that race had anything to do with it. Pur-
suant to Federal Rule of Civil Procedure 60(a), the district
court shall amend the judgment to reflect that dismissal of
Miao’s complaint was with prejudice.
AFFIRMED
No. 25-1649 7
RIPPLE, Circuit Judge, dissenting.
Ever since their promulgation in 1938, the Federal Rules of
Civil Procedure have brought to the federal courts the order
and discipline necessary for the efficient and just resolution of
federal litigation. Today’s panel majority’s decision does little
to reinforce those qualities. Indeed, I respectfully suggest that
it significantly dilutes them.
Just a year ago, in Thomas v. JBS Green Bay, Inc., 120 F.4th
1335, 1337 (7th Cir. 2024), our court emphasized eloquently
the importance of order in the litigation process. Specifically,
we emphasized the very different roles played by the com-
plaint stage and the summary judgment stage in pretrial liti-
gation. Id. at 1337–38. Usually, cases involving this distinction
focus on whether the complaint adequately sets forth a cause
of action. Here, there is no doubt that Mr. Miao‘s complaint
presents a clear and comprehensive account of United’s ac-
tions that, in his view, constitute a discriminatory denial of
his right to passage on United Flight 2683 and to contract for
passage on subsequent United flights free of racial discrimi-
nation. Indeed, the panel majority’s detailed rendition of
Mr. Miao’s allegations demonstrates eloquently the clarity of
the complaint.
Even though the complaint sets forth a comprehensive de-
scription of Mr. Miao’s encounter with United personnel, the
panel majority nevertheless approves the dismissal of the
complaint because it perceives a different, but somewhat re-
lated, infirmity. Employing an analysis that we normally as-
sociate with motions for summary judgment, it writes that, in
its view, Mr. Miao’s factual allegations do not hold up to
“scrutiny.” This holding is no different from saying that no
rational jury could find that United acted as it did only
8 No. 25-1649
because of Mr. Miao’s race. Highlighting one phrase from the
complaint and culling out another, the panel majority opinion
accepts the argument that Mr. Miao violated an airline rule
when, in response to the flight attendant’s direction, he
promptly removed his lunch from the overhead bin but, ra-
ther than immediately placing it under his seat, temporarily
placed it on the seat next to him. It summarily rejects his as-
sertion that he did not disobey the flight attendant’s direction
in finding this temporary resting place for his lunch. Having
decided that this supposed violation played a role in the cap-
tain’s decision to remove Mr. Miao from the aircraft, the panel
No. 25-1649 9
majority concludes that there can be no liability under 42
U.S.C. § 1981.1 2
1 In a letter from Mr. Miao to United, which was attached to his complaint,
Mr. Miao stated that he would pursue his claim “[w]hether by either or
both administrative complaint with the Department of Transporta-
tion/FAA or by filing suit in federal court …” R.1-1 at 3. The Department
of Transportation hears complaints through its Office of Aviation Con-
sumer Protection. When a consumer files a complaint of discrimination,
the DOT investigates the complaint and directs the airline to respond, ul-
timately issuing findings to the consumer.
This remedy was available to Mr. Miao, but he was not required to ex-
haust it before filing a claim in federal court under Section 1981. We have
held that there is no administrative exhaustion requirement under Section
1981. See Donaldson v. Taylor Prods. Div. of Tecumseh Prods. Co., 620 F.2d
155, 158 (7th Cir. 1980) (“We agree that there is no exhaustion requirement
under either of the Civil Rights Acts,” referring to Title VII and 42 U.S.C.
§ 1981); Waters v. Wisconsin Steel Works of Intern. Harvester Co., 502 F.2d
1309, 1316 (7th Cir. 1974) (“We are of the view, therefore, that plaintiffs
could properly proceed against the union under Section 1981 without first
exhausting any contractual remedies under the collective bargaining
agreement.”).
2 Airlines enjoy some immunity under 49 U.S.C. § 44902(b). No party in
this case suggests that this immunity extends to cases alleging racial dis-
crimination under 42 U.S.C. § 1981. In Abdallah v. Mesa Air Group, Inc., 83
F.4th 1006, 1017 (5th Cir. 2023), the Fifth Circuit held that Ҥ 44902(b) does
not provide immunity for a § 1981 claim if a passenger’s protected status
is the but-for cause of the airline’s decision to remove that passenger, thus
rendering the airline’s action, in the words of the Second Circuit, ‘capri-
cious or arbitrary.’ Hence a decision motivated by the passenger’s race
alone would not be immune under that standard because, in the words of
§ 44902(b), the decision was not made because the passenger was ‘inimical
to safety.’ On the other hand, immunity would follow from a finding that
the airline’s decision was not arbitrary and capricious.” (citations omit-
ted).
10 No. 25-1649
There are several reasons for rejecting the panel majority’s
summary conclusion. To begin, although a plaintiff can plead
himself out of court by making factual allegations that are
clearly incompatible with liability, such an argument always
must be evaluated skeptically. 3 Mr. Miao’s statement that he
temporarily placed his lunch on the seat next to him is not
necessarily incompatible with his assertion that he did not
disobey the flight attendant’s direction. Certainly, he was en-
titled to maintain, at least at the pleading stage, that his action
was a good faith effort to comply with the flight attendant’s
direction and, at the very least, amounted to substantial com-
pliance with the attendant’s direction as he understood it. The
attendant wanted his lunch removed from the overhead bin
so that larger pieces could be placed in that compartment.
Moreover, Mr. Miao maintains that he intended to place his
lunch under the seat at a time appropriate with the airline’s
concern about the storage of personal effects for taxi and take-
off.
Mr. Miao had a right to develop his theory factually be-
yond the complaint stage. A complaint can be dismissed only
if it fails to “state a claim to relief that is plausible on its face.”
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atlantic
Corp. v. Twombly, 550 U.S. 544, 570 (2007)). However, the
“plausibility” standard did not create a “probability require-
ment” for plaintiffs. Alam v. Miller Brewing Co., 709 F.3d 662,
666 (7th Cir. 2013). The court’s role is not to assess whether
the plaintiff’s allegations will bear out in discovery, but rather
to ask only if the complaint contains enough factual details to
conclude that the story could have happened. See Swanson v.
3 See Tamayo v. Blagojevich, 526 F.3d 1074, 1086 (7th Cir. 2008).
No. 25-1649 11
Citibank, N.A., 614 F.3d 400, 404–05 (7th Cir. 2010). And in do-
ing so, we must “draw all reasonable inferences in the plain-
tiff’s favor.” Alarm Detection Sys., Inc. v. Village of Schaumburg,
930 F.3d 812, 821 (7th Cir. 2019).
Notably, Mr. Miao does not contest that, to recover under
Section 1981, he must establish that race alone was the basis
for his removal. He details a series of events that, in his view,
resulted in his removal on that basis. I do not know whether
he will prevail, but I see no justification for not allowing him
to have his story tested at least in the crucible of the summary
judgment process. Identifying, and proving, discrimination is
a difficult task and usually requires reliance on circumstantial
evidence. Mr. Miao will have to establish that the flight at-
tendant treated him differently from persons of another race
and did so intentionally. He will have to accomplish this feat
through his own testimony and perhaps that of others. Key to
this aspect of his case will no doubt be the testimony of the
other passenger who witnessed at least part of the encounter
and will be able to testify as to what was said and how it was
said. The actual role of the captain, if any, also needs to be
explored. At this stage of the litigation, no one has heard from
the captain. We do not know the actual basis for the captain’s
decision or even whether the captain made the decision. Even
if we assume that the captain (rather than the supervisor who
ordered Mr. Miao to leave the aircraft) made the decision, we
are asked to take on faith the assertion that the decision was
based at least partially on Mr. Miao having temporarily
placed his lunch on the vacant seat next to him. In accepting
that assertion, the majority draws an inference against
Mr. Miao. Although the flight attendant maintained that
Mr. Miao engaged in a physical altercation with her, Mr. Miao
strenuously disputes this allegation, suggesting that if the
12 No. 25-1649
flight attendant made such an allegation to the captain, it was
a lie. Indeed, until we hear from the captain, there is the dis-
tinct possibility that the captain’s sole reason for ordering
Mr. Miao’s removal was the report that he had engaged in a
physical altercation. If so, the captain’s action was based on a
falsehood.
In any event, panel majority’s opinion assumes that
Mr. Miao’s temporary placement of his lunch was at least a
partial reason for United’s drastic action and that therefore
justification for Mr. Miao’s removal rests, at least in part, on a
non-discriminatory reason. This assumption rests, to put it
mildly, purely on surmise and requires that we assume that
the captain of an airliner would consider such drastic action
appropriate. At this stage of the proceedings, the district court
accepted uncritically such an assertion without any further
factual development. The panel majority opinion attempts to
fit this case into the mold of Kaminski v. Elite Staffing, Inc., 23
F.4th 774, 776–77 (7th Cir. 2022). In that case, although noting
that plaintiffs are not required to plead a prima facie case of
discrimination, the court held that the complaint failed to
state a claim because it did not include any allegation of the
“facts or circumstances [that led the plaintiff] to believe her
treatment was because of her membership in a protected class.”
Id. at 778. Here, relying on Kaminski, the panel majority writes,
“The only possible allegation that suggests Miao was discrim-
inated against is the experience of a white passenger on board
the aircraft.” Miao, Slip Op. at 5. This analysis misapprehends,
indeed ignores, Mr. Miao’s account when read as a totality.
Mr. Miao’s account, fairly read, tells the story of a flight at-
tendant who greeted him, an Asian, with suspicion, treated
non-Asian passenger differently, raised her voice unprofes-
sionally when dealing with him about the temporary
No. 25-1649 13
placement of his lunch, and lied about his assaulting her.
Read as a whole, these factual allegations are more than suf-
ficient to support an inference of racial discrimination against
Mr. Miao. “That is an entirely plausible scenario, whether or
not it describes what ‘really’ went on in this plaintiff’s case.”
Swanson, 614 F.3d at 404–05. These allegations are sufficient to
sustain Mr. Miao’s case at the complaint stage. Later proceed-
ings will determine whether he can prove his allegations.
As I noted at the beginning, the Federal Rules of Civil Pro-
cedure provide not only a rationale decision-making struc-
ture but also an intellectual discipline. The Rules arrest prem-
ature judicial decision-making until there has been a full and
fair evaluation of the plaintiff’s case. They are an important
tool of judicial self-restraint. As our court said not long ago,
“[w]e appreciate that district judges may be impatient with
suits that do not seem promising, because the judges doubt
that plaintiffs will be able to marshal enough evidence to get
to trial. But the time to demand evidence is the summary-
judgment stage. All the complaint need do is state a griev-
ance. Details and proofs come later.” Thomas, 120 F.4th at
1338.
I respectfully dissent.