# Mercado

> District Court, S.D. Texas · February 20, 2026

URL: https://www.frixlaw.com/law-library/cases/11268190

## Case

- **Full name:** C. Mercado v. United Airlines, Inc.
- **Court:** District Court, S.D. Texas
- **Decided:** February 20, 2026
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/11268190

## Opinion text

IN THE UNITED STATES DISTRICT COURT February 21, 2026
FOR THE SOUTHERN DISTRICT OF TEXAS Nathan Ochsner, Clerk
HOUSTON DIVISION

C. MERCADO, §
§
Plaintiff, §
v. § CIVIL ACTION NO. H-25-4696
§
UNITED AIRLINES, INC., §
§
Defendant. §

MEMORANDUM AND OPINION
Cesar Mercado sues his former employer, United Airlines, Inc., alleging that he was written
up, suspended without pay, and then pressured to resign because of his race and national origin.
(Docket Entry No. 11). He asserts claims under Title VII and 42 U.S.C. § 1981 for race
discrimination, national origin discrimination, and hostile work environment. (Id. ¶¶ 56–90).
United moved to dismiss. (Docket Entry No. 13). At the initial conference held on January 15,
2026, the court granted the motion to dismiss as to the hostile work environment claims but stated
that the motion remained pending as to the discrimination claims. (Docket Entry No. 19). Based
on the pleadings, the motion, and the applicable law, the court denies the motion to dismiss the
discrimination claims. The reasons are explained below.
I. Background
Mercado is Hispanic and from Puerto Rico. (Docket Entry No. 11 ¶¶ 1, 17). His primary
language is Spanish and his English is heavily accented. (Id. ¶ 17). He began working for United
in New York in 2000, transferred to George Bush Intercontinental Airport (IAH) in 2016, and
worked for United through 2025. (Id. ¶¶ 18, 19). Mercado joined United’s “Move Team” in
September 2019. (Id. ¶ 18). At that time, he was given a one-page “Personal Vehicle Parking
Policy,” which told the Move Team members where to park during their shifts. (Id. ¶ 23). He was
also given verbal instructions from team members on how to clock in and out for his shifts via a
mobile app or at physical kiosks located in “various areas” at IAH. (Id. ¶ 24).
Mercado asserts that after the initial parking policy and verbal instructions were provided,
the Move Team members’ assigned parking was changed three different times to different areas

and terminals of IAH and that these changes were only verbally communicated. (Id. ¶ 25). He
asserts that it was “still understood that” members could clock in and out for shifts via the app or
at the closest kiosk, “with no formal written policy stating designated clock in and out areas for
Move Team members.” (Id.). During COVID, however, the Move Team members were instructed
to use a specific kiosk to clock in and out. (Id. ¶ 26). After the pandemic emergency protocols
ended, the Move Team could again clock in and out using the app or at available kiosks throughout
IAH. (Id. ¶ 27). Mercado asserts that if he had technical problems, he would contact Ricki
Mendoza, his supervisor, for assistance.1 (Id. ¶¶ 30, 28).
One day in June 2023, Mercado clocked out of his shift using the app, but it did not record

the time he clocked out. (Id. ¶ 29). Pam Hernandez, one of Mercado’s superiors, told Mendoza
that she had to write Mercado up for not clocking out. (Id. ¶¶ 21, 29). When he learned of the
write-up, Mercado contacted another supervisor to provide Hernandez with photographic evidence
of when he arrived at work. (Id. ¶ 30). Despite the dated and time-stamped photos, Hernandez
allegedly refused to remove the write-up from Mercado’s file. (Id. ¶ 31). Mercado’s union
representative and Shop Steward, Tom Morgan, told him to file a written complaint with the human
resources department against Hernandez. (Id. ¶ 32). The pleadings do not assert that Mercado

1 Mercado asserts that none of his superiors (Pam Hernandez, Donnie Phares, and Robby Lafluer) nor his
direct supervisor (Ricki Mendoza) were Hispanic or Puerto Rican. (Docket Entry No. 11 ¶¶ 20, 21).
2
ever filed such a complaint. Mercado alleges that after June 2023, whenever he experienced a
technical issue, he would contact Mendoza and Hernandez, “yet he did not receive any further
communication or instruction.” (Id. ¶ 33).
On November 23, 2024, Mercado alleges that he entered IAH through the Mail House
(presumably a part of IAH) and attempted to clock into the kiosk at 2:30 p.m., but it did not work.

(Id. ¶ 34). He took a photograph of the time on the clock and his ID and sent the photos to Mendoza
to prove that he was starting his shift on time. (Id.). He then used the app to clock in. (Id.).
Mercado explained the issue to a coworker and Shop Steward, Jaime Enchautegui, who is also
Puerto Rican. Enchautegui told Mercado that United employees can clock in at any kiosk at the
airport and that he did not know why Mercado was having an issue doing so. (Id. ¶ 36). Mercado
then called Mendoza, who told him—allegedly for the first time since he joined the Move Team—
that the Mail House was not Mercado’s designated entry area. Mendoza told Mercado to contact
Hernandez about the clock-in issue. (Id. ¶ 37). Mercado called Hernandez, who told him that he
was not allowed to clock in at the Mail House and that she would not correct the clock-in error.

(Id. ¶¶ 38, 39). Mercado alleges that he felt “confused and targeted” by Hernandez’s comments
and her refusal to correct the misinformation, and that he was “still not provided with any verbal
or written instruction on the alleged designated area where he was to clock in and out.” (Id. ¶ 39).
On November 30, 2024, Mercado contacted a former supervisor, Robby Lafleur, to explain
the November 23 incident and to ask for clarity on the clock in/clock out policy. (Id. ¶¶ 21, 40).
Lafleur did not answer but forwarded the email to Hernandez and Donnie Phares, the Airport
Operations Manager, asking for “[t]houghts on the below . . . I haven’t answered him yet. . . .” (Id.
¶ 40). Mercado alleges that he did not hear from anyone about the November 23 incident or other
time-clock issues again until February 2025. (Id. ¶ 41). Mercado alleges that over the “next couple

3
of months,” he continued to ask his coworkers and other Move Team members about any new
policy or instruction for clocking in and out, and no one said that they had been given any new
instructions. (Id. ¶ 42).
On February 3, 2025, Mercado was called into a conference with Phares, Moran, Move
Team Supervisor Abel Nora, and a human resources representative, Mary Buesing, as part of an

internal investigation. (Id. ¶ 43). Buesing asked Mercado in rapid English about his clock-ins
from more than a year earlier. (Id. ¶ 44). Mercado asked Nora, who is Hispanic, to help translate
the questions, since he regularly communicated with Nora in Spanish, but Phares denied this
request and allowed the meeting to proceed in English only. (Id.). Mercado alleges that he had
difficulty responding to the questions and could not ask any clarifying questions, which led to him
being “accused of making false statements and of timeclock fraud.” (Id. ¶ 45). Mercado was
placed on suspension without pay. (Id.). Phares proposed terminating his employment. (Id.).
Mercado alleges that United’s lack of support during this meeting caused him to “feel
isolated and discriminated against” and that he sought medical care for his mental health due to

the “gravity of discrimination and harassment he was enduring.” (Id. ¶¶ 48, 49). The day after the
meeting, Buesing asked Mercado to submit a letter explaining the dates he entered through
different areas of IAH to clock in for his shifts. (Id. ¶ 47). Mercado alleges that “[o]nce again, the
English-Spanish language barrier put [him] in a disadvantageous position” that “enabled” United’s
“discriminatory targeting” of him as a Hispanic employee from Spanish-speaking Puerto Rico.
(Id.). Mercado asserts that the only other Move Team member investigated for time-clock rule
violations was Ryan Carreon, a Hispanic Mexican male coworker. (Id. ¶¶ 46, 49).
Mercado alleges that at some point during his suspension, Carreon told Mercado that he
had been suspended for suspected time-clock fraud and that supervisors had recommend firing

4
him. (Id. ¶ 50). Carreon’s last day of work was on March 15, 2025, and United formally
terminated him on August 19, 2025. (Id.). United did not investigate the time-clock practices of
other Move Team members, although according to Mercado, they “were continuing to clock in
and out from the mobile application or nearest kiosk.” (Id.).
Mercado alleges that he was pressured to resign. (Id. ¶ 51). On April 2, 2025, Mercado

received a letter informing him of an Investigative Review Meeting scheduled for April 10, 2025.
(Id. ¶ 52). The letter cited “proposed termination” as the reason for the meeting. (Id.). The letter
stated that a company investigation had substantiated that between January 2024 and November
2024, Mercado clocked in at least 26 times at kiosks located in buildings other than his designated
work area to “falsely give the impression” that he had arrived at work on time. (Id.). Mercado
was told (although he does not specify by whom) that “his only option would be retirement by
resignation because United Airlines does not forgive these kinds of situations and always fires
employees accused of such matters.” (Id. ¶ 53). Mercado alleges that he “was compelled” to
resign on April 3, 2025. (Id. ¶ 54).

In October 2025, Mercado sued United. (Docket Entry No. 1). In his amended complaint,
(Docket Entry No. 11), which is the operative complaint, Mercado asserts claims for (1) race
discrimination, national origin discrimination, and hostile work environment under Title VII and
(2) race discrimination, national origin discrimination, and hostile work environment under 42
U.S.C. § 1981. (Id. ¶¶ 56–90). United moved to dismiss. (Docket Entry No. 13). The court
granted the motion to dismiss as to the hostile work environment claims at the initial conference
and now addresses the remaining claims.2

2 Mercado asserts that the motion to dismiss is time-barred because United filed its motion to dismiss and
answer on the same day. (Docket Entry No. 15 at 2). But “courts often consider a post-answer motion to

5
II. The Legal Standard
Rule 12(b)(6) allows dismissal if a plaintiff fails “to state a claim upon which relief can be
granted.” FED. R. CIV. P. 12(b)(6). Rule 12(b)(6) must be read in conjunction with Rule 8(a),
which requires “a short and plain statement of the claim showing that the pleader is entitled to
relief.” FED. R. CIV. P. 8(a)(2). “[A] complaint must contain sufficient factual matter, accepted as

true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678
(2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). Rule 8 “does not require
‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-
harmed-me accusation.” Id. at 678 (quoting Twombly, 550 U.S. at 555). “A claim has facial
plausibility when the plaintiff pleads factual content that allows the court to draw the reasonable
inference that the defendant is liable for the misconduct alleged.” Id. “The plausibility standard
is not akin to a ‘probability requirement,’ but it asks for more than a sheer possibility that a
defendant has acted unlawfully.” Id. (quoting Twombly, 550 U.S. at 556).
“A complaint ‘does not need detailed factual allegations,’ but the facts alleged ‘must be

enough to raise a right to relief above the speculative level.’” Cicalese v. Univ. Tex. Med. Branch,
924 F.3d 762, 765 (5th Cir. 2019) (quoting Twombly, 550 U.S. at 555). “Conversely, when the
allegations in a complaint, however true, could not raise a claim of entitlement to relief, this basic
deficiency should be exposed at the point of minimum expenditure of time and money by the

dismiss as properly before the court as long as the movant also raised the defense . . . in his or her answer.”
Natour v. Bank of Am., N.A., No. 4:21-CV-00331, 2021 WL 5239592, at *5 (E.D. Tex. Nov. 10, 2021)
(alteration in original) (quoting Isbell v. DM Records, Inc., No. 4:07-cv-00146, 2011 WL 1299611, at *2
n.2 (E.D. Tex. Mar. 31, 2011)). Because United raised the defense of failure to state a claim in its answer,
(Docket Entry No. 12 ¶ 92), which was filed the same day as the motion to dismiss, the motion to dismiss
was timely. Natour, 2021 WL 5239592, at *5. The court need not consider United’s evidence that it
submitted those two docket entries simultaneously. (Docket Entry No, 16-1).
6
parties and the court.” Cuvillier v. Taylor, 503 F.3d 397, 401 (5th Cir. 2007) (quotation marks
omitted, alterations adopted) (quoting Twombly, 550 U.S. at 558).
A court reviewing a motion to dismiss under Rule 12(b)(6) may consider “(1) the facts set
forth in the complaint, (2) documents attached to the complaint, and (3) matters of which judicial
notice may be taken under Federal Rule of Evidence 201.” Inclusive Cmtys. Project, Inc. v.

Lincoln Prop. Co., 920 F.3d 890, 900 (5th Cir. 2019).
III. Analysis
“The Title VII inquiry is ‘whether the defendant intentionally discriminated against the
plaintiff.’” 3 Johnson v. Louisiana, 351 F.3d 616, 621 (5th Cir. 2003) (quoting U.S. Postal Serv.
Bd. of Governors v. Aikens, 460 U.S. 711, 715 (1983)). “Resolution of a claim involves a three-
step, burden-shifting analysis.” Id. “First, a plaintiff must raise a genuine issue of material fact
on each element of his prima facie case. Second, if the plaintiff presents a prima facie case, the
defendant must then give a legitimate, nondiscriminatory reason for the employment decision.
Third, the plaintiff must raise a genuine issue of material fact that shows the defendant’s reason

may be pretext for discrimination.” Id. “To establish a prima facie case of racial discrimination
in employment, an employee must demonstrate that (1) he is a member of a protected class, (2) he
was qualified for the position at issue, (3) he was the subject of an adverse employment action,
and (4) he was treated less favorably because of his membership in that protected class than were

3 “[R]ace discrimination claims brought pursuant to section 1981 are governed by the same evidentiary
framework applicable to employment discrimination claims under Title VII.” Sanders v. Fed. Express, No.
4:24-cv-00333, 2025 WL 898070, at *7 (N.D. Tex. Mar. 4, 2025) (alteration in original) (quoting Pegram
v. Honeywell, Inc., 361 F.3d 272, 281 (5th Cir. 2004)). “[T]he analysis under both [Title VII] and § 1981
[is] identical, the only substantive differences between the two statutes being their respective statute of
limitations and the requirement under Title VII that the employee exhaust administrative remedies.” Id.
(quoting Jones v. Robinson Prop. Grp., L.P., 427 F.3d 987, 992 (5th Cir. 2005)). United disputes that
Mercado exhausted his administrative remedies in its answer, (Docket Entry No. 12 ¶ 14), but does not
raise the issue of exhaustion in its motion to dismiss, (see generally Docket Entry No. 13).
7
other similarly situated employees who were not members of the protected class, under nearly
identical circumstances.” Lee v. Kansas City S. Ry. Co., 574 F.3d 253, 259 (5th Cir. 2009). The
same test applies for national origin discrimination claims. See Pita Santos v. Evergreen All. Golf
Ltd., LP, 650 F. Supp. 2d 604, 609 (S.D. Tex. 2009).
United does not challenge the first two prima facie elements and does not distinguish

between the national origin and racial discrimination claims. It bases the motion to dismiss on the
argument that “Mercado has failed to plead sufficient facts to support the third and fourth
elements.” (Docket Entry No. 13 ¶ 9). As to the third element, United argues that Mercado failed
to sufficiently allege a constructive discharge because he failed to “allege either discrimination
with aggravating factors or harassment beyond a hostile work environment,” and that without
alleging constructive discharge, he has failed to plead an adverse employment action. (Id. ¶ 10).
As to the fourth element, United argues that Mercado failed to “identify a specific comparator—
meaning someone with a comparable number of instances of timeclock fraud—outside his
protected class in order to state a claim.” (Id. ¶ 11). In response, Mercado argues that: (1)

constructive discharge can be shown by an employer’s adverse actions acts against an employee,
whether or not those actions constitute “harassment” in the traditional sense; (2) suspension
without pay is an adverse employment action; and (3) there was no need for him to name a specific
comparator because no other employees besides himself and Carreon were even investigated for
time-clock fraud. (Docket Entry No. 15).
Mercado’s suspension without pay qualifies as an adverse employment action, regardless
of the parties’ dispute about constructive discharge. The Fifth Circuit recently clarified the
definition of “adverse employment action,” using the en banc process to eliminate its prior
“ultimate employment decision” standard. Hamilton v. Dallas County, 79 F.4th 494, 506 (5th Cir.

8
2023). “A plaintiff need only show that she was discriminated against, because of a protected
characteristic, with respect to hiring, firing, compensation, or the ‘terms, conditions, or privileges
of employment.’” Id. (quoting 42 U.S.C. § 2000e-2(a)(1)). In Hamilton, the Fifth Circuit held
that an allegation that a sheriff’s department required female but not male officers to work full
weekends was sufficient to state a sex discrimination claim. Id. at 505–06. Although this

scheduling policy was not an “ultimate employment decision,” it affected the “terms, conditions,
or privileges” of employment. Id. In the retaliation context, the Fifth Circuit has held that even a
two-day suspension without pay can be an adverse employment action. See, e.g., LeMaire v. La.
Dep’t of Trans. & Dev., 480 F.3d 383, 390 (5th Cir. 2007). Mercado’s allegation of his months-
long suspension without pay clearly affected the “terms, conditions, or privileges” of his
employment and meets the adverse employment action requirement.
Mercado has also sufficiently alleged that he was treated differently because of his
protected status. Mercado is correct that under Fifth Circuit case law, an employee need not
necessarily show “each prong of the prima facie test for disparate treatment at the pleading stage,”

Raj v. La. State Univ., 714 F.3d 322, 331 (5th Cir. 2013), and that “scrutinizing whether [the
employees’] fellow employees [are] really ‘similarly situated’” is “more suited to the summary
judgment phase,” Cicalese v. Univ. of Tex. Med. Branch, 924 F.3d 762, 768 (5th Cir. 2019).
Mercado had to plausibly plead the “ultimate elements” of a disparate treatment claim under Title
VII. Id. at 766–767. These elements are “(1) an ‘adverse employment action,’ (2) taken against a
plaintiff ‘because of her protected status.’” Id. at 767 (quoting Raj, 714 F.3d at 331). The second
element may be met by pleading facts showing that an employer treated similarly situated
employees of other races or national origins more favorably. Raj, 714 F.3d at 331.

9
United frames the issue as whether Mercado’s non-Hispanic coworkers “remained
employed after double-digit instances of timeclock fraud.” (Docket Entry No. 13 ¶ 11). This is
too narrow. The issue is whether Mercado’s non-Hispanic coworkers were not only suspended
without pay or fired but investigated for time-card fraud after clocking in via the app or at any
available kiosk at IAH, rather than at a designated kiosk. The investigation and suspension are

necessarily coupled. The adverse employment action was only possible because Mercado was
investigated, and that investigation allegedly happened because of his race or national origin.
Although not a model of clarity, Mercado’s complaint alleges that (1) other Move Team members
clocked in and out via the app or at the nearest available kiosk but were not investigated, and (2)
the only Move Team members who were investigated, and then had adverse employment actions
taken against them, were the two Hispanic members of the team. (Docket Entry No. 11 ¶¶ 50, 62).
Whether the non-Hispanic Move Team members who were not investigated and therefore
could not have been suspended for identical activities were sufficiently similarly situated is an
issue more appropriate for adjudication at summary judgment. See Davis v. CenterPoint Energy,

Inc., No. 4:24-cv-1019, 2025 WL 816245, at *3 (S.D. Tex. Mar. 13, 2025) (allowing a complaint
that was “by no means overly specific” to proceed when the plaintiff alleged that an employee
named “Amanda,” who was of a different race, received a warning for the same conduct that led
to the plaintiff’s removal and that the plaintiff was replaced by someone of a different race);
Lucenio v. Houston Indep. Sch. Dist., No. 4:21-cv-00650, 2022 WL 658838, at *15 (S.D. Tex.
Feb. 16, 2022) (“[S]crutinizing whether [the plaintiff’s] white co-workers were truly ‘similarly
situated’ to her is more suited for the summary judgment phase.”), report and recommendation
adopted, 2022 WL 658719 (S.D. Tex. Mar. 4, 2022); cf. Thornton v. Univ. of Tex. Sw. Med. Ctr.
Sch. of Med., No. 24-10594, 2025 WL 619166, at *3 n.4 (5th Cir. 2025) (affirming a dismissal

10
based on the lack of comparators when the plaintiff pleaded that “[u]nder the same or similar
circumstances, non-African American employees in his department have been allowed to return to
work after presenting a ‘fitness-to-return notice’” but failed to allege that those employees shared
the same job title, supervisor, and also failed to return to work after their allotted medical leave).
IV. Conclusion
The court denies the motion to dismiss as to the remaining discrimination claims. (Docket
Entry No. 13). These claims will proceed.
SIGNED on February 20, 2026, at Houston, Texas.

LW Crt
Lee H. Rosenthal
Senior United States District Judge

11

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/11268190. Public record. Not legal advice.