Sambrano v. United Airlines

Case: 21-11159 Document: 00516206629 Page: 1 Date Filed: 02/17/2022
United States Court of Appeals
for the Fifth Circuit
United States Court of Appeals
Fifth Circuit
FILED
February 17, 2022
No. 21-11159 Lyle W. Cayce
Clerk
David Sambrano, on their own behalf and on behalf of all others similarly
situated; David Castillo, on their own behalf and on behalf of all others
similarly situated; Kimberly Hamilton, on their own behalf and on
behalf of all others similarly situated; Debra Jennefer Thal Jonas, on
their own behalf and on behalf of all others similarly situated; Genise
Kincannon, on their own behalf and on behalf of all others similarly
situated; Seth Turnbough, on their own behalf and on behalf of all others
similarly situated,
Plaintiffs—Appellants,
versus
United Airlines, Incorporated,
Defendant—Appellee.
Appeal from the United States District Court
for the Northern District of Texas
USDC 4:21-CV-1074
Before Smith, Elrod, and Oldham, Circuit Judges.
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Per Curiam:*
Plaintiffs are United Airlines employees. United has given them a
choice: receive the COVID-19 vaccine or be placed on unpaid leave
indefinitely. The question we address here is narrow. If United’s policy is
not preliminarily enjoined, are plaintiffs likely to suffer irreparable harm? For
the two plaintiffs who received religious exemptions and remain on unpaid
leave, we hold that they are. We therefore REVERSE the decision of the
district court and REMAND for consideration of the other factors courts
must evaluate when deciding whether to issue a preliminary injunction. 1
Critically, we do not decide whether United or any other entity may
impose a vaccine mandate. Nor do we decide whether plaintiffs are
ultimately entitled to a preliminary injunction. The district court denied such
an injunction on one narrow ground; we reverse on that one narrow ground
and remand for further consideration.
I.
In August of 2021, United announced that each of its United States-
based employees would be required to get the COVID-19 vaccine. The
announcement came with a deadline of either five weeks after the FDA
formally approved the vaccine or five weeks after September 20, whichever
was sooner. The FDA approved the Pfizer COVID-19 vaccine on August 21,
2021, which set the vaccination deadline as September 27, 2021. Employees
*
Pursuant to 5th Circuit Rule 47.5, the court has determined that this
opinion should not be published and is not precedent except under the limited
circumstances set forth in 5th Circuit Rule 47.5.4.
1
The dissenting opinion dedicates at least six pages to raising concerns about the
unpublished nature of this decision. Under our court’s procedures, any member of this
panel may require this opinion to be published. See 5th Cir. R. 47.5.2. Apparently the one
thing all three of us agree on is that this decision need not be. And the reason is quite
simple: today’s decision is interlocutory, decides nothing on the merits, and answers only
the irreparable-injury question asked by the district court. Cf. 28 U.S.C. § 1292(b). The
merits—and hence the decision that might merit publication—await another day.
2
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who were not vaccinated by that deadline were terminated. United does not
require any passenger on its planes to be vaccinated. Nor does it require its
employees based in other countries to get vaccinated—even though those
employees work with and come into contact with U.S.-based crews. And
neither does it require pilots from other airlines who ride in the cockpit
jumpseat on United flights to be vaccinated.
United purported to provide exemptions for those who could not get
vaccinated for either religious or medical reasons. That is, within ten days
after the FDA approved the COVID-19 vaccine, a United employee could
apply for an exemption from the vaccine mandate for either religious or
medical reasons. But at a town-hall meeting, United’s CEO warned that not
many exemptions would be granted and remarked that any employee who
“all the sudden decid[ed], ‘I’m really religious’” would be “putting [her] job
on the line” by requesting an accommodation. Once an employee requested
a religious exemption, United would ask the employees about their past
vaccinations, the use of stem cells in those vaccines, and “why receiving such
vaccines or medications were not a violation of” the employees’ “sincerely
held [religious] belief” on those prior occasions. United also asked why the
employees’ religious beliefs prevented them from receiving the COVID-19
vaccine “but not taking other types of medicine.” Some employees were
asked to provide a letter from a pastor or other third party attesting that the
employee actually held religious beliefs.2
2
United’s bizarre inquisition into the sincerity of its employees’ beliefs is
somewhat at odds with our usual approach of taking parties at their word regarding their
own religious convictions. Cf. Whole Woman’s Health v. Smith, 896 F.3d 362, 371 (5th Cir.
2018) (quoting Moussazadeh v. Tex. Dep’t of Criminal Justice, 703 F.3d 781, 792 (5th Cir.
2012) (recognizing courts take a “light touch” when it comes to examining religious belief
and practice)); Tagore v. United States, 735 F.3d 324, 328 (5th Cir. 2013) (“[C]laims of
3
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After United would determine which employees were sufficiently
religious, it provided those employees with an “accommodation.” The
employee could keep her job, but could not go to work, would not be paid,
and would not receive company-paid benefits. To go back to work, the
exempt employee had to get the COVID-19 vaccine. And if the employee
would not, she could instead wait it out and start work again after the
pandemic “meaningfully recedes” (which United guesses could be another
“72 months” or so).
United’s campaign was not limited to forcing employees to choose
between the vaccine and indefinite unpaid leave. For example, in August
2021, United began sending postcards to unvaccinated employees stating
that United had not received evidence of their vaccination and they needed
to get vaccinated to avoid being “separated from United.” Plaintiffs credibly
contend that United sent postcards rather than letters in order to broadcast
employees’ unvaccinated status to family members and enlist those family
members in coaxing employees to receive the vaccine.
Plaintiffs are several United employees who requested religious or
medical accommodations from United. Those requesting religious
accommodations did so out of concern that aborted fetal tissue was used to
develop or test the COVID-19 vaccines.3 Others requested medical
sincere religious belief in a particular practice have been accepted on little more than the
plaintiff’s credible assertions.”); see also, e.g., Chalifoux v. New Caney Indep. Sch. Dist., 976
F. Supp. 659, 670 (S.D. Tex. 1997) (“The fact that wearing a rosary as a necklace is not
mandated by orthodox Catholicism does not defeat their First Amendment rights to free
exercise of their personal beliefs.”).
3
This is a common basis for religious objections to the COVID-19 vaccine. Dr. A
v. Hochul, 142 S. Ct. 552, 553 (2021) (Gorsuch, J., dissenting from the denial of application
for injunctive relief); Does 1–3 v. Mills, 142 S. Ct. 17, 18–19 (2021) (Gorsuch, J., dissenting
from the denial of application for injunctive relief).
4
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accommodations because they had preexisting conditions which they
believed made receiving a vaccine unnecessarily risky. For their concerns,
United threatened to stop paying them or providing any benefits.
Plaintiffs filed EEOC charges in September 2021. But because
United’s policy would go into effect before they received right-to-sue
notices, plaintiffs sued and moved for a preliminary injunction, alleging
United’s vaccine policy violated their rights under Title VII of the Civil
Rights Act of 1964 and the Americans with Disabilities Act. Plaintiffs
specifically asserted that “United has put its religious and disabled workers
in an impossible position—take the COVID-19 vaccine, at the expense of
their religious beliefs and health, or face a lengthy period of unpaid leave.”
After plaintiffs filed suit, United changed its policy to allow certain
employees with non-customer-facing operational roles—for example,
aircraft mechanics—the accommodation of working pursuant to a masking-
and-testing protocol. United also permitted some customer-service
representatives to switch to remote positions rather than be placed on unpaid
leave. This allowed three plaintiffs—Kimberly Hamilton, David Castillo,
and Debra Jonas—to continue to work and be paid without receiving a
COVID-19 vaccine. But for customer-facing employees, including pilots,
flight attendants, and most customer-service agents, indefinite unpaid leave
remains the only “accommodation” United will provide. Plaintiffs David
Sambrano and Genise Kincannon—a pilot and a flight attendant,
respectively—fall into this category and thus are only eligible for unpaid
leave.4
4
The sixth named plaintiff, Seth Turnbough, is also a pilot. But the district court
found that it lacked personal jurisdiction over United with respect to his claims, and the
issue of personal jurisdiction is not properly before us on this interlocutory appeal. See
5
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After a hearing, the district court denied plaintiffs’ motion for a
preliminary injunction. Though the district court noted that plaintiffs’
claims were “compelling and convincing,” it ultimately concluded that
plaintiffs could not establish irreparable injury. 5 Plaintiffs appealed and
moved for an injunction pending appeal, which a panel of this court
denied. See Sambrano v. United Airlines, Inc., 19 F.4th 839, 839 (5th Cir.
2021). We have jurisdiction under 28 U.S.C. § 1292(a)(1).
II.
The question presented to us in this appeal is whether the district
court erred by denying plaintiffs a preliminary injunction on the ground that
they have not demonstrated a likelihood of irreparable injury if United’s
policy continued to operate against them while their Title VII suit is pending.
We hold that the district court erred as to the plaintiffs who remain on unpaid
leave and have brought Title VII actions.6 Plaintiffs are being subjected to
Seahorse Boat & Barge Corp. v. Jacksonville Shipyards, Inc., 617 F.2d 396, 397 (5th Cir. 1980).
We therefore do not consider Turnbough’s claims.
5
Ironically, the dissenting opinion accuses us of omitting facts because they
“would get in the way of a good story”—right after repeatedly doing exactly that. Post at
28. For example, the townhall-meeting statements by United’s CEO receive no mention
from the dissenting opinion, despite figuring prominently in the district court’s opinion
and the parties’ briefing. The dissenting opinion also asserts that “[b]ecause union
contracts and federal regulations cap the time that pilots can spend on duty, requiring
unvaccinated pilots to test would reduce the time they can spend in the air.” Post at 27. Yet
the dissenting opinion ignores the fact that plaintiffs are willing to test at their own expense
and on their own time. They even filed supplemental briefing in the district court explaining
that doing so would be consistent with the relevant FAA regulations and collective-
bargaining agreements. Instead, the dissenting opinion emphasizes other facts, like the
reasons why United provided masking-and-testing accommodations to some employees
but not others, even when they have no bearing on the irreparable-harm inquiry before us.
6
We refer to those two plaintiffs, Sambrano and Kincannon, simply as “plaintiffs”
from this point forward for ease of reading. We do not reverse the district court as to any
plaintiffs who have been provided other accommodations and are not on unpaid leave.
6
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ongoing coercion based on their religious beliefs. That coercion is harmful in
and of itself and cannot be remedied after the fact.7
A.
“The decision to grant or deny a preliminary injunction lies within the
sound discretion of the trial court and may be reversed on appeal only by a
showing of abuse of discretion.” White v. Carlucci, 862 F.2d 1209, 1211 (5th
Cir. 1989) (quoting Apple Barrel Prods., Inc. v. Beard, 730 F.2d 384, 386 (5th
Cir. 1984)). When considering whether a plaintiff is entitled to a preliminary
injunction, courts must consider questions of fact and of law. Apple Barrel,
730 F.2d at 386. Factual conclusions of the trial court may be reversed only
if clearly erroneous. Id.; Fed. R. Civ. P. 52(a). Legal conclusions “are subject
to broad review and will be reversed if incorrect.” Commonwealth Life Ins.
Co. v. Neal, 669 F.2d 300, 304 (5th Cir. 1982).
B.
The purpose of a preliminary injunction is to preserve the status quo
and prevent irreparable injury until the court renders a decision on the merits.
See, e.g., Canal Auth. of Fla. v. Callaway, 489 F.2d 567, 576 (5th Cir. 1974). A
plaintiff is entitled to a preliminary injunction if she shows: “(1) a substantial
likelihood of success on the merits; (2) a substantial threat of irreparable
injury; (3) the threatened injury to the movant outweighs the threatened
harm to the party sought to be enjoined; and (4) granting the injunctive relief
7
The dissenting opinion asserts that plaintiffs have not alleged a coercion injury
and instead rely simply on an allegation that United has taken adverse employment
action. But the plaintiffs have alleged the coercion harm both at the district court and here
when arguing that they will suffer irreparable injury without an injunction. The dissenting
opinion from the motions panel addressed that particular harm as well. Sambrano, 19 F.4th
at 840–42 (Ho, J., dissenting from the denial of injunctive relief pending appeal). This
opinion does not create the theory for them.
7
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will not disserve the public interest.” City of Dallas v. Delta Air Lines, Inc.,
847 F.3d 279, 285 (5th Cir. 2017) (citation and quotation omitted). In this
appeal we address only the second factor. But before doing so, we must
address the broader issue whether a preliminary injunction is ever available
to plaintiffs suing private employers under Title VII. We hold that it is.
1.
Nothing in our precedent forecloses the general availability of a
preliminary injunction to a plaintiff bringing a Title VII action against a
private employer.8 Indeed, binding precedent supports the availability of
such relief. In Drew v. Liberty Mutual Insurance Co., we held that “in the
limited class of cases” in which an employee establishes both an irreparable
injury and a likelihood of success on the merits, the employee “may bring her
own suit to maintain the status quo pending the action of the [EEOC] on the
basic charge of discrimination.” 480 F.2d 69, 72 (5th Cir. 1973). This case
follows directly in Drew’s footsteps. Plaintiffs here filed an action with the
EEOC and are currently awaiting action from that agency. Thus, they may
be entitled to a preliminary injunction until the EEOC’s decision if they can
make the required showing under the equitable factors.
The Supreme Court’s decision in Alexander v. Sandoval, 532 U.S. 275(2001), limited the ability of private plaintiffs to sue for injunctions in civil
rights actions. But it did not do so for cases like this one. In Sandoval the
Supreme Court held that plaintiffs had no private right of action under § 602
8
Much of the dissenting opinion’s most emphatic rhetoric stems from its contrary
position that “[f]inding irreparable harm here would contravene decades of settled
precedent.” Post at 40; see also, e.g., id. at 61 (calling this opinion an “orgy of jurisprudential
violence”). Yet even United’s counsel admitted at oral argument that not one court of
appeals opinion has expressly rejected plaintiffs’ theory of irreparable injury. See Oral
Argument at 47:07, Sambrano v. United Airlines (No. 21-11159) (“[N]o, I’m not aware of
one, but again, they haven’t cited a case where they can . . . .”).
8
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of Title VI of the Civil Rights Act. Id. at 293. The Court specifically noted,
however, that plaintiffs can bring such suits under § 601. Id. at 279–80. The
difference between the provisions is that while § 601 specifically provides for
private rights against discrimination, § 602 only gives instructions to federal
agencies. Id. at 288–89. Section 703 of Title VII, like § 601 of Title VI,
provides for private rights against discrimination. See 42 U.S.C. § 2000e-2.
Thus, Title VII plaintiffs have the benefit of the Supreme Court’s holding in
Cannon v. University of Chicago, 441 U.S. 677 (1979), where the Court
explained that “when [a] remedy is necessary or at least helpful to the
accomplishment of the statutory purpose, the Court is decidedly receptive to
its implication under the statute.” Id. at 703; see also Lakoski v. James, 66
F.3d 751, 753–54 (5th Cir. 1995) (assuming that Title VII provides for a
private cause of action as a general matter if the plaintiff has properly
exhausted administrative remedies).9
9
Sandoval gives us no reason to depart from our decision in Drew or the Court’s
decision in Cannon. In Sandoval, the Court first looked to see whether § 602 contained
either an express private right of action or, following Cannon, “rights-creating language”
indicating an implicit intent to create a private remedy. Sandoval, 532 U.S. at 288–
89. Finding neither, it then determined that § 602’s “elaborate restrictions on agency
enforcement” “contradict a congressional intent to create privately enforceable rights
through § 602 itself.” Id. at 290.
This case is a far cry from Sandoval. First, § 703 does create private rights against
discrimination. See 42 U.S.C. § 2000e-2. The language that Title VII plaintiffs may
privately enforce under Drew is much closer to the rights-creating language of § 601 than
the language of § 602 that the Court considered in Sandoval. See id. § 2000e-2(a) (“It shall
be an unlawful employment practice for an employer . . . to discriminate against any
individual . . . because of such individual’s race, color, religion, sex, or national origin.”).
And second, § 706 creates neither “elaborate restrictions on agency enforcement” nor an
entirely alternative “remedial scheme.” See Sandoval, 532 U.S. at 290–91; 42 U.S.C.
§ 2000e-5.
The dissenting opinion’s response is particularly head-scratching. It claims that
this conclusion “is like holding that, because a case’s facts are closer to Swift v. Tyson, 41
9
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Having concluded that the remedy of preliminary injunction is not per
se unavailable to Title VII plaintiffs suing private employers, we now must
consider whether plaintiffs here can pursue that remedy. United asserts that
they cannot because they have not properly exhausted their administrative
remedies with the EEOC as required by Title VII. See 42 U.S.C.
§ 2000e-5(e)(1), (f)(1). We disagree and hold that plaintiffs in this case need
not have fully exhausted administrative remedies before seeking a
preliminary injunction in federal court.
The general rule established by statute and precedent is that before
bringing a Title VII action in an Article III court, “a plaintiff must exhaust
administrative remedies by filing a charge with the EEOC within 180 days of
the discriminatory action.” Ernst v. Methodist Hosp. Sys., 1 F.4th 333, 337
(5th Cir. 2021). “To exhaust, a plaintiff must file a timely charge with the
EEOC and then receive a notice of the right to sue.” Id.But the exhaustion requirement is qualified. This court has held that
in Title VII cases, an “individual employee may bring her own suit to
maintain the status quo pending the action of the [EEOC] on the basic charge
of discrimination.” Drew, 480 F.2d at 72. Plaintiffs here filed a request with
the EEOC in September of 2021 and are awaiting the agency’s decision.
Thus, although plaintiffs did not exhaust EEOC remedies before filing suit,
they may still seek a preliminary injunction. United asserts that Drew is
inapplicable for two reasons: (1) the plaintiff in that case purportedly had
U.S. (16 Pet.) 1 (1842), than they are to Erie Railroad Co. v. Tompkins, 304 U.S. 64 (1938),
the general common law governs after all.” Post at 34. Erie, of course, overruled Swift. 304
U.S. at 69. So this analogy would make some sense if Sandoval had overturned Cannon.
But the whole basis for our reasoning is the fact that Sandoval reaffirmed Cannon. While
Sandoval did not come to praise Cannon, neither did it come to bury it.
10
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exhausted EEOC remedies by the time we issued our decision; and (2) the
Supreme Court’s decisions in Sandoval, 532 U.S. 275, and Ross v. Blake, 578
U.S. 632 (2016), implicitly overruled Drew. We disagree on both points.
Drew remains good law and binds us in this case.
First, although the EEOC proceedings had concluded by the time this
court issued the Drew decision, the plaintiff had not yet exhausted when the
motion for a preliminary injunction was initially filed. 480 F.2d at 70–72.
The court thus squarely addressed whether a plaintiff could file a suit for
injunction while the EEOC was still considering the matter. That issue was
“[t]he basic question decided by the trial court,” and this court held that it
was “still a viable issue” on appeal. Id. at 72. Thus, that factual distinction
has no relevance to the applicability of Drew’s rule; rather, Drew by its own
terms applies to any Title VII case “in which irreparable injury is shown and
likelihood of ultimate success has been established.” Id.Second, Sandoval and Ross did not implicitly overrule Drew. In
Sandoval, the Court held that private individuals may not sue to enforce
disparate-impact regulations promulgated under Title VI. 532 U.S. at 293.
As discussed above, however, the Court specifically recognized that
individuals may sue under the provisions of Title VI which, unlike the
provision at issue in that case, include language establishing a right against
discrimination. Id. at 288–89. Title VII also contains rights-creating
language, so Sandoval does not apply.
Nor does Ross apply. In that case the Court held that there is no
“special circumstances” exception to the Prison Litigation Reform Act’s
administrative exhaustion requirement. 578 U.S. at 635, 648–49. It
explained that “mandatory exhaustion statutes like the PLRA establish
mandatory exhaustion regimes, foreclosing judicial discretion.” Id. at 639.
But Ross involved a § 1983 claim for damages against government officials
11
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resulting from the use of excessive force against a prisoner. Id. at 636–37.
This case is different because it involves a request for a preliminary injunction
to avoid irreparable harm. Time is of the essence in such cases, so while a
plaintiff must exhaust EEOC remedies before ultimately prevailing in a Title
VII action, she need not do so to simply request that the status quo be
preserved until the EEOC reaches a decision. As we explained in Drew,
although the plaintiff “normally would not be permitted to file a suit on the
merits unless the [EEOC] had been unable for a period of 180 days to effect
conciliation,” the 180-day provision did not apply “because the action
brought by [the plaintiff was] merely one to seek temporary relief pending the
action of the [EEOC].” 480 F.2d at 73 n.5; see also Bailey v. Delta Air Lines,
Inc., 722 F.2d 942, 944 (1st Cir. 1983) (declining “to adopt a rule
categorically barring all suits for preliminary relief pending administrative
disposition” in Title VII cases); Sheehan v. Purolator Courier Corp., 676 F.2d
877, 884 (2d Cir. 1981).10
In any event, beyond the factual and legal differences, “[i]t is a well-
settled Fifth Circuit rule of orderliness that one panel of our court may not
overturn another panel’s decision, absent an intervening change in the law,
such as by a statutory amendment, or the Supreme Court, or our en banc
court. This rule is strict and rigidly applied.” In re Bonvillian Marine Serv.,
Inc., 19 F.4th 787, 792 (5th Cir. 2021) (citation omitted). United points to no
statutory amendment or en banc Fifth Circuit decision to undercut Drew.
“[F]or a Supreme Court decision to change our Circuit’s law, it must be
more than merely illuminating with respect to the case before [the court] and
10
The dissenting opinion is thus wrong to claim that “Drew itself does not address
Title VII’s exhaustion requirement.” Post at 60. Drew expressly permits a federal court to
act pending EEOC action—in other words, before the EEOC process has concluded. 480
F.3d at 73 n.5.
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must unequivocally overrule prior precedent.” Id. at 792 (citation and
quotations omitted). Neither Sandoval nor Ross unequivocally overruled
Drew, so Drew remains good law.11
2.
Now we address the central question presented—whether the district
court erred by concluding that plaintiffs have not shown that they will suffer
irreparable harm without a preliminary injunction. This case is rather unique
among Title VII cases. Plaintiffs allege a harm that is ongoing and cannot be
remedied later: they are actively being coerced to violate their religious
convictions. Because that harm is irreparable, we reverse the district court.
The district court held that plaintiffs have not demonstrated a
likelihood of irreparable harm as they must do to be entitled to a preliminary
injunction. As for harms resulting from being placed on unpaid leave like lost
pay, loss of skill or seniority, stigmatic injury, and marital strain, the district
court noted that such injuries are either too speculative or could be remedied
by later court action. As for plaintiffs’ assertion that they are harmed by being
coerced into a choice between their religious convictions and continued
employment, the district court concluded that plaintiffs could not assert such
harm because while it may be cognizable in a First Amendment case brought
against a government entity, it is not a cognizable harm in a Title VII case
11
The dissenting opinion contends that even if Drew is good law, it cannot apply to
excuse plaintiffs’ failure to exhaust EEOC remedies unless “the plaintiffs show that their
substantive claims are likely to succeed.” Post at 61. Perhaps the dissenting opinion
misunderstands our position. By relying on Drew, we do not now hold that the plaintiffs
are entitled to an injunction despite any failure to exhaust. We simply hold that because of
Drew an injunction is not foreclosed. Again, we only address the irreparable-injury
prong. The district court on remand should consider the other elements necessary to
support an injunction, including, of course, whether the plaintiffs are likely to succeed on
the merits.
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brought against a private entity. We disagree with the district court’s
conclusion about the coercion harm.
In lawsuits alleging wrongful termination or adverse employment
action, the plaintiff is ordinarily not irreparably harmed. That is because the
statutory relief available at the conclusion of a successful lawsuit (including
reinstatement and back pay) can adequately compensate the plaintiff for the
employer’s wrongful conduct. As the Supreme Court has explained,
“[m]ere injuries, however substantial, in terms of money, time and energy
necessarily expended in the absence of a stay, are not enough.” Sampson v.
Murray, 415 U.S. 61, 90 (1974) (quotation omitted).
Our cases recognize two different categories of harm in employment
cases. The first and by far the most common harm is the adverse employment
action itself; Sampson addressed that category. A Title VII plaintiff is
obviously injured by an adverse employment action, and that adverse action
can in turn cause all sorts of other harms. But under Sampson, none of those
harms can support a preliminary injunction. After all, the entire point of Title
VII’s remedial scheme is to return the employee to the status quo and to
compensate her (as closely as possible) for all damages that stem from the
adverse employment action.
Our decision in Morgan v. Fletcher, 518 F.2d 236 (5th Cir. 1975),
illustrates the first type of harm. In that case the employee allegedly suffered
sex discrimination and attempted to get an injunction to prevent her
termination. Id. at 238. We held that the employee failed to show irreparable
harm because her injuries stemmed exclusively from the employer’s decision
to terminate her. See id. at 240. It therefore did not matter that the plaintiff’s
salary represented 45% of her family’s income, that losing it would likely
result in foreclosure of her home, and that losing medical benefits could affect
her mental health. See id. at 238. Such harms resulted only from the
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employer’s decision to fire her. And that decision—to take an adverse
employment action—cannot support an injunction.
The second category of harm recognized in our cases includes injuries
that are independent from the adverse employment action. Very few
employment suits involve such harms. That is so because in most Title VII
cases, an adverse employment action has occurred and is the basis of the suit.
See, e.g., Davis v. Fort Bend County, 765 F.3d 480, 485 (5th Cir. 2014). And
under Sampson and Morgan, any harm caused by that adverse action is
compensable if at all only at the end of the suit.
Neither can a plaintiff show such independent harm by pointing to the
strength of her case. We explained in White v. Carlucci that:
[T]here is no nexus between the strength and nature of the
underlying claim and the element of irreparable harm. Such
irreparable harm must be proven separately and convincingly.
The burden of proof is not reduced by either the existence of
an extremely strong likelihood of success or the egregiousness
of the alleged wrong upon which the underlying claim is based.
862 F.2d at 1212. The rationale for the principle recognized in White is
simple: If the plaintiff has a strong case on the merits, she is likely to win her
suit and get compensated with Title VII remedies; just as in Sampson and
Morgan, that is a textbook example of reparable harm.
But the fact that such independent harms are rare does not mean they
never exist. To the contrary, both Sampson and White explicitly recognize
that Title VII plaintiffs can sometimes (even if rarely) establish irreparable
harm separate and apart from their underlying claims. Id.; see also Sampson,
415 U.S. at 90 (noting that showing irreparable injury is possible, even if that
is not so in the “ordinary” case).
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Plaintiffs in this case alleged precisely the sort of exogenous and
irreparable harm that cases like Sampson and White envisioned. Crucially,
plaintiffs are not seeking an injunction merely to prevent an adverse
employment action or any harm stemming from such action. Indeed,
plaintiffs admit that Sampson and White would preclude injunctive relief if
United simply fired them. Their allegation of irreparable harm based on
coercion is antecedent to, independent from, and exogenous to any adverse
employment action. Plaintiffs specifically allege that United wants to coerce
them into getting a vaccine that violates their sincerely held religious beliefs
and thus avoid any adverse employment action.
Properly understood, the plaintiffs are alleging two distinct harms—
one of which is reparable under Sampson and Morgan, and the other of which
is irreparable under Sampson and White. The first is United’s decision to
place them on indefinite unpaid leave; that harm, and any harm that flows
from it, can be remedied through backpay, reinstatement, or otherwise. The
second form of harm flows from United’s decision to coerce the plaintiffs
into violating their religious convictions; that harm and that harm alone is
irreparable and supports a preliminary injunction.
This court and the Supreme Court have held that “[t]he loss of First
Amendment freedoms, for even minimal periods of time, unquestionably
constitutes irreparable injury.” Elrod v. Burns, 427 U.S. 347, 373 (1976); see
also Opulent Life Church v. City of Holly Springs, 697 F.3d 279, 295 (5th Cir.
2012) (“Most basically, Opulent Life has satisfied the irreparable-harm
requirement because it has alleged violations of its First Amendment and
RLUIPA rights.”). Indeed, we recently held that plaintiffs had suffered
irreparable harm from being coerced into “a choice between their job(s) and
their jab(s),” BST Holdings, L.L.C. v. OSHA, 17 F.4th 604, 618 (5th Cir.
2021), or “between their beliefs and their benefits,” Sambrano, 19 F.4th at
841 (Ho, J., dissenting).
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In each of those cases the plaintiffs brought actions against the
government or government officials, so the First Amendment applied.
Plaintiffs here have brought a statutory action under Title VII against a
private employer. Certainly when a court considers whether a plaintiff is
likely to succeed on the merits it must consider both the provision the action
is brought under and the identity of the defendant, among many other things.
But here we consider only whether plaintiffs are likely to suffer irreparable
harm. The answer to that question depends simply on the effect of the
defendant’s action on the plaintiffs. See 11A Wright & Miller, Fed. Prac. &
Proc. Civ. § 2942 (3d ed. Apr. 2021 update) (explaining that irreparable harm
is a plaintiff-focused inquiry which asks whether the “plaintiff is being
threatened by some injury for which he has no adequate legal remedy”); see
also Sambrano, 19 F.4th at 841–42 (Ho, J., dissenting) (“We focus on the
plaintiff—and our ability to remedy the plaintiff’s injury—not the identity of
the defendant. As we’ve repeatedly observed, ‘Plaintiffs are entitled to a
preliminary injunction if they show . . . a substantial threat that they’—
meaning, the plaintiffs—‘will suffer an irreparable injury if the injunction is
not granted.’” (quoting Doe I v. Landry, 909 F.3d 99, 106 (5th Cir. 2018)
(emphasis added))).
In other words, we do not agree that the fact that this is a statutory
action instead of an action under the First Amendment meaningfully
transforms what a plaintiff must show to demonstrate irreparable injury. In
Opulent Life, we considered a claim brought under both RLUIPA and the
First Amendment. 697 F.3d at 295. We explained that under both the
constitutional and statutory provisions a plaintiff demonstrates irreparable
harm by alleging a violation of her rights to freely exercise her religion. Id. It
is true that RLUIPA is to be “construed in favor of a broad protection of
religious exercise, to the maximum extent permitted by the terms of [its]
chapter and the Constitution.” 42 U.S.C. § 2000cc-3(g). And Title VII
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does not contain such specific language. But Title VII does prohibit
discrimination by an employer “against any individual with respect to his
compensation, terms, conditions, or privileges of employment, because of
such individual’s . . . religion[.]” 42 U.S.C. § 2000e-2(a)(1).12 Indeed,
though we have not addressed the matter squarely (and need not do so in this
case either), this court has favorably quoted the proposition that, through
Title VII, Congress “intended to protect the same rights in private
employment as the Constitution protects[.]” Riley v. Bendix Corp., 464 F.2d
1114, 1116 (5th Cir. 1972) (quoting 118 Cong. R. § 228).13 Simply put, any
dispute over whether an employer’s actions ultimately violate Title VII is, at
the preliminary injunction stage, a question under the “likelihood of success
on the merits” prong. Here we are considering only whether plaintiffs have
shown substantial likelihood of irreparable injury.
We believe that they have. United has presented plaintiffs with two
options: violate their religious convictions or lose all pay and benefits
indefinitely. That is an impossible choice for plaintiffs who want to remain
12
“And ‘[a]t the risk of belaboring the obvious, Title VII aimed to ensure that
employees would not have to sacrifice their jobs to observe their religious practices.’”
Sambrano, 19 F.4th at 842 (Ho, J., dissenting) (quoting Adeyeye v. Heartland Sweeteners, 721
F.3d 444, 456 (7th Cir. 2013)).
13
We recognize the limited relevance of Riley. In that case, this court considered
the extent to which Title VII prohibits adverse employment action because of an
employee’s Sabbath observance. We quoted the Senate floor remarks of the sponsor of an
amendment to Title VII. 464 F.2d at 1116–17. The amendment, which is now codified at
42 U.S.C. § 2000e(j), explains that “[t]he term ‘religion’ includes all aspects of religious
observance and practice, as well as belief, unless an employer demonstrates that he is
unable to reasonably accommodate to an employee’s or prospective employee’s religious
observance or practice without undue hardship on the conduct of the employer’s
business.” The sponsor’s remarks expressed that though courts had “come down on both
sides of the issue” whether Title VII provides as many protections in the private
employment context as the First Amendment does in the public context, the amendment
was intended “to resolve [that issue] by legislation.” 464 F.2d at 1116.
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No. 21-11159
faithful but must put food on the table. In other words, United is actively
coercing employees to abandon their convictions.14 Indeed, at a town-hall
meeting, United’s CEO revealed United’s sentiments towards parties like
plaintiffs. He noted that “very few” religious exemptions would be granted.
And he warned that any employee who “all the sudden decid[ed], ‘I’m really
religious’” would be “putting [her] job on the line” by requesting an
accommodation. Of course, even those who successfully requested a
religious exemption were deprived of all meaningful employment benefits by
being placed on indefinite unpaid leave. Thus, plaintiffs are continually
subjected to a coercive choice between pay and adhering to religious
convictions.15
United complains that this conception of irreparable harm gets things
backwards. It asserts that it could have simply fired all its unvaccinated
employees, and they would have had no basis to seek an injunction during the
pendency of their suits. But because United took what it labels the “more
accommodating” approach of giving them a timeframe within which they
could get vaccinated and keep their jobs, it is now subject to a preliminary
14
United also argues that the “impossible choice” is not a choice at all: Because
plaintiffs say they will never get the COVID-19 vaccine, they cannot be coerced. But even
if that is true now, it does not mean it will always be so. As plaintiffs point out, this policy
has proved effective—the record contains the affidavit of one United employee who
opposed taking the COVID-19 vaccine on religious grounds but nonetheless received it
after deciding “I could not afford to lose my job.”
15
Recent decisions from other circuits do not foreclose this conception of
irreparable harm. See Together Employees v. Mass Gen. Brigham Inc., 19 F.4th 1, 8 (1st Cir.
2021) (while considering irreparable injury, observing that “appellants cannot point to an
‘impossible choice’ as a special factor here; they have already made their choices”); see also
We the Patriots USA, Inc. v. Hochul, 17 F.4th 266, 294 (2d Cir. 2021) (concluding that the
plaintiffs could not show irreparable harm, but only considering “loss of employment and
professional standing” injuries).
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injunction. United argues it is illogical that seeking to “accommodate” its
employees renders it subject to an injunction.
United’s argument has some intuitive appeal, but it mischaracterizes
both United’s conduct and plaintiffs’ injuries. United labels its approach an
“accommodation” compared to simply terminating unvaccinated
employees, but the content of its accommodation for customer-facing
employees merely gives them time to consider whether to acquiesce to
United’s demands rather than indefinitely lose pay. United argues that such
treatment is better than simply firing the employees because it gives them a
choice they would not otherwise have. But not all choices are received as an
advantage. Plaintiffs assert that the choice United has given them has created
a crisis of conscience, pressuring them to abandon their religious
commitments. By threatening termination, United has enlisted employees
and their families in the project of reforming employees’ religious
commitments. Putting employees to this coercive choice imposes a distinct
and irreparable harm beyond lost pay, benefits, seniority, and other tangible
and remediable losses. Cf. Sambrano, 19 F.4th at 842 (Ho, J., dissenting)
(“To hypothesize that the earthly reward of monetary damages could
compensate for these profound challenges of faith is to misunderstand the
entire nature of religious conviction at its most foundational level.”).
If plaintiffs here merely alleged that a past action by the employer
caused and will continue to cause economic harms, our precedent likely
would not allow us to conclude that they have demonstrated irreparable
harm. But plaintiffs allege a harm of a different nature, and one that is
ongoing. Thus, this is one of the “extraordinary cases” in which “the
circumstances surrounding [the employer’s actions], together with the
resultant effect on the employee, may so far depart from the normal situation
20
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that irreparable injury might be found.” Sampson, 415 U.S. at 92 n.68.16
Plaintiffs are not merely seeking to prevent or undo the placement on unpaid
leave itself, but are also challenging the ongoing coercion of being forced to
choose either to contravene their religious convictions or to lose pay
indefinitely. In such cases, when an employee is subjected to ongoing coercion
because of a protected characteristic, the irreparable harm factor of the
preliminary injunction analysis is satisfied.17
16
Although such cases are extraordinary and rare, they are not confined to the
religious-accommodation context. Consider a company’s policy to, five weeks in the
future, place on unpaid leave all employees in same-sex relationships. After five weeks,
employees in such relationships could maintain their pay only by ending the relationship.
United concedes that under its approach such employees would not be entitled to a
preliminary injunction of that openly discriminatory policy. See Oral Argument at 41:04–
42:20, Sambrano v. United Airlines (No. 21-11159).
Nor is this a vaccine-specific exception to the general unavailability of preliminary
injunctive relief under Title VII. Take another example: Imagine an airline announced a
policy that, effective in one month, flight attendants would be placed on unpaid leave for
wearing any head covering during their flights. In the time between the announcement and
the implementation of the policy, those who wear hijabs as part of their religion would be
given the same impossible choice. Under United’s approach, they are “better off” being
given a choice (between maintaining their income and honoring their religious beliefs)
rather than just being fired for their religious beliefs. See Oral Argument at 44:04–47:01,
Sambrano v. United Airlines (No. 21-11159). But allowing preliminary relief under those
circumstances obviates the independent harm of having to make such a choice in the first
place.
17
The dissenting opinion would go on to affirm the denial of a preliminary
injunction on other grounds. But with the grant or denial of such relief being within “the
sound discretion of the trial court,” the better course is to allow the district court to
consider the other factors in the first instance. White, 862 F.2d at 1210 n.1, 1211; see also
Montano v. Texas, 867 F.3d 540, 546 (5th Cir. 2017) (“[A] court of appeals sits as a court of
review, not of first view.”). The district court noted not only that plaintiffs’ merits
arguments were “compelling and convincing,” but also that further briefing and
evidentiary development was necessary regarding, for instance, United’s updated policy
and its effects on the plaintiffs in this case. As a result, rather than go beyond the limited
scope of this interlocutory appeal, we remand to allow the district court to address the rest
of the preliminary injunction factors in the first instance.
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* * *
We REVERSE the district court’s conclusion that plaintiffs have not
demonstrated irreparable injury absent an injunction, and we REMAND for
consideration of the remaining preliminary injunction factors.
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Jerry E. Smith, Circuit Judge, dissenting:
In its alacrity to play CEO of a multinational corporation, the majority
shatters every dish in the china shop. It rewrites Title VII to create a new
cause of action. It twists the record to fit that invention. It defies our
precedent and the commands of the Supreme Court. But this majority is no
senseless bull. Knowing exactly what it has wrought, the majority declares
that its unsigned writing will apply to these parties only. By stripping its
judgment of precedential effect, the majority all but admits that its screed
could not survive the scrutiny of the en banc court.
We should affirm the district court’s cogent and compelling order
denying the plaintiffs a preliminary injunction.1
For every conceivable reason that the plaintiffs could lose this appeal,
they should. The statute does not allow the relief they seek. Nor do our
precedents; if they did, the Supreme Court has overruled them. If they have
not been overruled, fifty years of precedent and centuries of Anglo-American
remedies law show that preliminary relief may not issue. If it could issue, it
shouldn’t, because the only plaintiffs with standing claim no harm from the
“impossible choice” between full postjudgment relief and eternal
damnation. If we accepted the plaintiffs’ theory and twisted the facts to
support it, we must dismiss the appeal because the plaintiffs have not
exhausted their administrative remedies. If we excused that, they do not
answer United’s defenses, so they have not shown that they are likely to win.
And if they had shown that, the equities and the public interest would
preclude an injunction.
Instead of confronting those odds, the majority ignores them and
1
Sambrano v. United Airlines, Inc., No. 21-cv-1074, 2021 U.S. Dist. LEXIS 215285(N.D. Tex. Nov. 8, 2021) (Pittman, J.).
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invents a new Title VII sin called “ongoing coercion,” resulting in the plain-
tiffs’ win. Alleging “ongoing coercion” now supplies a private right to
preliminary injunctive relief—not because of text, history, or precedent, but
because two well-intentioned but misguided judges say so.
My distinguished colleagues claim that as faithful textualists, they
accurately apply the statutory text and caselaw to this controversy. I dispute
that and show why.
I respectfully dissent.
I.
The majority insists that this case is “extraordinary and rare.” Ante
at 21 n.16. But to believe that, my distinguished colleagues distort the record
and the parties’ arguments. Let’s complete the picture.
A.
Last summer (2021), the Delta variant drove coronavirus
hospitalizations to a new high.2 Amid that surge, private businesses large and
small began requiring their employees to vaccinate against the disease. So
did United Airlines.
In August, United announced that it would require U.S.-based
employees to vaccinate against the coronavirus within two months.
Employees could seek religious or medical exemptions. United
conscientiously explained that it would work with exempted employees to
“determine whether a reasonable accommodation can be provided that does
2
See Deepa Shivaram, More Than 100,000 People Are Hospitalized with COVID-19,
the Most Since January, Nat’l Pub. Radio (Aug. 26, 2021), https://www.npr.org/
sections/coronavirus-live-updates/2021/08/26/1031264193/100-k-covid-hospitalization-
highest-peak.
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not create an undue hardship for United and/or does not pose a direct threat
to the health or safety of others in the workplace or to the employee.”
Employees who received neither the vaccine nor an exemption would be
fired.
United requested that applicants provide some basic information. It
required those applying for a medical exemption to submit a one-page form,
signed by their physician, stating “the medical reason for vaccine
exemption.” To seek a religious accommodation, an employee only had to
explain her sincerely held religious belief. Consistent with federal guidance,
United asked some employees to supplement their requests. 3 For example,
plaintiff Sambrano was asked to explain his religious beliefs and to supply a
letter from a third party attesting to them. He did so, and his request was
promptly approved. The majority calls that process a “bizarre inquisition.”
Ante at 3 n.2. Bizarre indeed, because United approved 82% of religious-
accommodation requests and 63% of medical-accommodation requests.
In early September, as approvals rolled out, United contacted
employees to lay out its plans. “Given our focus on safety and the steep
increases in COVID infections,” United’s message began, “all active
employees whose request[s] [are] approved will be placed on temporary,
3
See U.S. Equal Emp. Opportunity Comm’n, Off. of Legal
Couns., EEOC-CVG-2021-3, Section 12: Religious Discrimination,
§ 12-I-A-3 (Jan. 15, 2021), https://www.eeoc.gov/laws/guidance/section-12-religious-
discrimination (“If . . . an employee requests religious accommodation, and an employer
has an objective basis for questioning either the religious nature or the sincerity of a par-
ticular belief, observance, or practice, the employer would be justified in seeking additional
supporting information.”). That guidance also notes that when investigating a charge of
religious discrimination, EEOC officials “may need to ask follow-up questions about the
nature and tenets of the asserted religious beliefs” or “seek evidence such as oral state-
ments, affidavits, and other documents from [the employee’s] religious leader(s), if
applicable.” Id.
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No. 21-11159
unpaid personal leave on October 2 while specific safety measures for
unvaccinated employees are instituted.”
The message then detailed those measures. Given the differences in
“employee and customer interaction . . . from role to role,” United separated
its employees into three groups.
The first group included “operational, customer-facing” employees,
such as pilots, flight attendants, and customer service agents. Those em-
ployees, who interact with many persons each day, would receive “unpaid
personal leave” until the pandemic “meaningfully recedes.”
The second contained operational employees with roles that are less
social. Think technicians, baggage crew, and the like. Those employees
would “undergo weekly COVID-19 testing” and “wear a mask at all times.”
The last group held the rest of United’s workforce—its office staff
across the country. United planned to place that group on unpaid leave as it
devised safety measures for its diverse membership. But United began
offering remote work to those whose duties allowed it.
Days after that message, the plaintiffs submitted charges to the EEOC
and sued United in federal court. The plaintiffs are five United employees.4
All are exempt from United’s vaccine requirement. Sambrano is a pilot;
Kincannon, a flight attendant. The other three are not flight-crew members.
Castillo repairs planes; Hamilton coordinates ground operations. Neither
works with customers. But Jonas did, at the United Club in Dallas–Fort
Worth Airport.
In the weeks that followed, United delivered on its pre-suit promise
and more. As its message foretold, United allowed unvaccinated, non-
4
There were six, but one was dismissed for want of personal jurisdiction.
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customer-facing operational employees—the second group—to return to
work subject to a masking-and-testing requirement. That covered Castillo
and Hamilton. Office staff, the third group, transitioned to remote work or
masking and testing.
The first group—customer-facing staff—presented a greater
challenge. Their roles are more interactive and thus carry more risk. But
United accommodated nearly all its customer-service representatives,
including Jonas, with new roles requiring only masking and testing. 5 The
company offered non-customer-facing positions to pilots and flight
attendants, whom United also authorized to find jobs elsewhere until they
could return.
United did not offer a masking-and-testing accommodation to pilots
or flight attendants. See ante at 5–6. But the majority neglects to tell the
reader why.
For pilots like Sambrano, United cannot require masking and testing
as an alternative to vaccination. Masking poses special hazards in the cockpit.
Masks inhibit communication, visibility for glasses wearers, and the donning
of oxygen masks in emergencies. No one wants the pilot to crash because
she’s fiddling with a mask.
Testing encounters legal, contractual, and logistical limits. Because
union contracts and federal regulations cap the time that pilots can spend on
duty, requiring unvaccinated pilots to test would reduce the time they can
spend in the air. And when pilots get sick, United must delay or cancel flights
5
The majority claims that for “most” customer-service representatives, “indefi-
nite unpaid leave remains the only ‘accommodation’ United will provide.” Ante at 5–6.
Hogwash. Only nine customer-facing CSRs in United’s entire U.S. workforce have
received unpaid leave as an accommodation, and none is a plaintiff here.
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or rearrange its crews to fill the gap. Sickness is bad for business—and for
unvaccinated pilots, who are more likely to die from the coronavirus than are
their vaccinated colleagues.
Unlike pilots, flight attendants can mask on the job, but they, too, are
subject to duty-time limits. Plus, pilots and flight attendants work, travel,
dine, and stay together during their trips, which extend for days at a time.
United concluded that those prolonged close contacts would defeat
alternative accommodations. As one of United’s corporate officers testified,
United cannot “control the environment” for its flight crews. That
challenge sets those employees apart. “[W]hether it’s mask compliance,
safety protocols, social distancing, [or] management oversight,” the witness
explained, it’s “very difficult” to enforce “any type of moderated
accommodation” for those employees.
Notice how few of these facts appear in the majority opinion. They
would get in the way of a good story.
B.
The sole issue on this interlocutory appeal is whether the district court
correctly denied the plaintiffs a preliminary injunction. The plaintiffs asked
the district court to stop United from placing them on unpaid leave. The
court declined because the plaintiffs had not shown irreparable harm. The
plaintiffs appeal that judgment per 28 U.S.C. § 1292(a)(1).
A preliminary injunction may issue only if the plaintiffs show that
(1) they are likely to win; (2) they are likely to endure irreparable harm
without an injunction; (3) the injunction will protect the plaintiffs more than
it will harm the defendant; and (4) the injunction won’t “disserve the public
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interest.”6 The plaintiffs must prove every factor “by a clear showing.”
White v. Carlucci, 862 F.2d 1209, 1211 (5th Cir. 1989) (citation omitted). And
we may affirm the denial of an injunction on any basis that the record
supports.7
The majority reverses the district court as to Sambrano and
Kincannon—the pilot and flight attendant.8 The majority concedes that all
their injuries are reparable9 but one: the “impossible choice” between
vaccinating and seeking full postjudgment relief from a federal court.
To reach that result, the majority invents a new cause of action for
employees who allege “ongoing coercion” by their employer. The majority
says that such employees may seek a preliminary injunction even without
exhausting their administrative remedies, as Title VII requires. Moreover,
we must presume their irreparable harm no matter what the record shows.
6
Def. Distributed v. U.S. Dep’t of State, 838 F.3d 451, 457 (5th Cir. 2016), reh’g en
banc denied, 865 F.3d 211 (5th Cir. 2017).
7
See Future Proof Brands, L.L.C. v. Molson Coors Bev. Co., 982 F.3d 280, 288 (5th
Cir. 2020); see also Gilbert v. Donahoe, 751 F.3d 303, 311 (5th Cir. 2014) (“We may affirm
on any ground supported by the record, including one not reached by the district court.”
(cleaned up)).
8
The majority denies relief to Castillo, Jonas, and Hamilton. That’s correct.
Those plaintiffs lack standing to press their appeal because they are not, nor will be, on
unpaid leave. Cf. Clapper v. Amnesty Int’l USA, 568 U.S. 398, 409 (2013).
9
Lost seniority is not irreparable harm because the district court may award retro-
active seniority to the plaintiffs after trial. The loss of chances to bid for desirable routes at
United is not irreparable harm because that loss is either speculative or remediable with
damages. Likewise, the sundry effects of unpaid leave are not irreparable harms, because
the plaintiffs may win reinstatement, back pay, and other postjudgment remedies at trial.
Although the delay before a final judgment may result in hardships, those “injuries, how-
ever substantial,” are not “irreparable harm.” Sampson v. Murray, 415 U.S. 61, 90 (1974)
(citation omitted).
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* * * * *
This panel must answer three questions. The first is whether federal
law entitles our plaintiffs to seek a preliminary injunction. It does not.
But if it did, the second is whether the plaintiffs’ “impossible choice”
between full postjudgment relief and vaccination is an irreparable injury. It
is not.
But if it were, the third issue is whether we may affirm the denial of
injunctive relief on other grounds. We may—for at least four reasons. One,
the plaintiffs have not exhausted their administrative remedies. Two, even if
we could excuse that, the plaintiffs have not shown they are likely to win.
Three, even if they had shown that, an injunction would harm United more
than it would help the plaintiffs. Four, an injunction would disserve the
public interest. We should not hasten to crush a private firm’s effort to
protect its customers and employees during a global pandemic.
II.
Before examining whether the plaintiffs are entitled to a preliminary
injunction, we must consider whether the law permits them to seek one at all.
It does not.
Start, as we must, with the text.10 Title VII explains whom it
empowers to seek preliminary injunctions:
Whenever a charge is filed with the Commission and the
Commission concludes on the basis of a preliminary
10
“The plain text should be the first and—if at all possible—the only step in a
statutory analysis.” Morgan v. Plano Indep. Sch. Dist., 724 F.3d 579, 589 (5th Cir. 2013)
(Elrod, J., dissenting); see also Cochran v. SEC, 20 F.4th 194, 214 (5th Cir. 2021) (en banc)
(Oldham, J., concurring) (“[O]ur inquiry begins with the statutory text, and ends there as
well if the text is unambiguous.” (quoting BedRoc Ltd., LLC v. United States, 541 U.S. 176,
183 (2004))).
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investigation that prompt judicial action is necessary to carry
out the purposes of this Act, the Commission, or the Attorney
General in a case involving a government, governmental
agency, or political subdivision, may bring an action for
appropriate temporary or preliminary relief pending final
disposition of such charge.
42 U.S.C. § 2000e-5(f)(2).11 Thus, in cases involving the government, the
Attorney General may seek a preliminary injunction; in other cases, only the
EEOC may do so.
As any law student can tell you, expressio unius est exclusio alterius;
“things not enumerated are excluded.” BMC Software, Inc. v. Comm’r,
780 F.3d 669, 676–77 (5th Cir. 2015) (Elrod, J.). When a statute grants a
power to certain listed entities, it does not grant that power to anyone else.12
For instance, suppose that a state legislature enacts a law allowing the
disabled and infirm to vote without entering a polling place. “By extending
the accommodation to that group only, the Legislature impliedly excluded
everyone else.” Hotze v. Hudspeth, 16 F.4th 1121, 1129 (5th Cir. 2021)
(Oldham, J., dissenting).
That principle controls here. Because Title VII empowers the EEOC
and the Attorney General to seek preliminary injunctions, it denies that
power to everyone else—including the private plaintiffs here, who have other
statutory remedies.13
11
The ADA incorporates Title VII’s remedial scheme, as well as its limits. See
42 U.S.C. § 12117(a). So unless I note otherwise, any discussion of Title VII in this opinion
applies also to the ADA.
12
See Antonin Scalia & Brian A. Garner, Reading Law: The
Interpretation of Legal Texts 107–11 (2012).
13
See 42 U.S.C. § 2000e-5(g)(1) (authorizing courts, after a final judgment, to
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Instead of offering a contrary reading, the majority claims to be bound
by Drew v. Liberty Mutual Insurance Co., 480 F.2d 69 (5th Cir. 1973). That
panel did recognize the right of individual employees to seek preliminary
injunctions in Title VII cases. Because Title VII created a general “right to
be free from [certain] discriminatory conduct,” Drew claimed that we could
“fashion an equitable remedy to vindicate th[at] right.” Id. at 73. We could
do that, Drew concluded, even though Congress had vested that remedy in
the EEOC only. See id. at 73–74.
As anyone who has taken a federal-courts class in the past two decades
will recognize, Drew is not good law, however convenient it may be for this
panel majority to claim its benefits. Our precedents do not survive “inter-
vening and overriding Supreme Court decisions,” White v. Estelle, 720 F.2d
415, 417 (5th Cir. 1983),14 and Drew does not survive Alexander v. Sandoval,
532 U.S. 275 (2001).
Sandoval held that private rights of action “must be created by
Congress.” Id. at 286. The judicial role is limited to “interpret[ing] the
statute Congress has passed to determine whether it displays an intent to
create not just a private right but also a private remedy.” Id. Applying that
principle, Sandoval rejected a private right to enforce a provision of Title VI.
By creating only “one method” of enforcement, the Court explained,
“Congress intended to preclude others.” Id. at 290. Sandoval marked the
end of the “ancien regime” in which courts invented remedies to vindicate
(1) “order such affirmative action as may be appropriate,” including “reinstatement”;
(2) permanently enjoin a defendant “from engaging in [an] unlawful employment
practice”; and (3) grant “any other equitable relief as the court deems appropriate”); id.§ 1981a(b) (authorizing punitive damages and special forms of compensatory damages).
14
See also United States v. Norbert, 990 F.3d 968, 987 (5th Cir.) (Oldham, J.,
dissenting) (stating that “we mustn’t follow” precedent that the Court has “squarely
contradicted”), reh’g en banc granted, 2 F.4th 505 (5th Cir. 2021).
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the rights created by Congress. Id. at 287.
Recognizing Sandoval’s significance, panels of this court have disre-
garded precedents that “relie[d] on pre-Sandoval reasoning.”15 Drew should
receive the same treatment. Perhaps it already has; before today, we had not
cited Drew since 1981, the year when the Eleventh Circuit split from the
Fifth. Indeed, we cabined the decision in 1975, noting that its interpretation
of Title VII conflicted with the Supreme Court’s understanding of that
statute. See Morgan v. Fletcher, 518 F.2d 236, 240 n.11 (5th Cir. 1975). By
1995, plaintiffs knew that they had to turn elsewhere to seek preliminary relief
for injuries at the hands of private employers. See Lakoski v. James, 66 F.3d
751, 753 (5th Cir. 1995). Drew no longer binds us, no matter how much the
majority would like it to.
Drew is not the only relic from the bygone era of judge-made remedies
that the majority exhumes for attention. The other is Cannon v. University of
Chicago, 441 U.S. 677 (1979)—or at least that language within it that permits
courts to create a remedy where it “is necessary or at least helpful to the
accomplishment of the statutory purpose.” Id. at 703. But the law today is
that courts may not make up a remedy “no matter how desirable that might
be as a policy matter, or how compatible with the statute.” Sandoval, 532
U.S. at 287. Cannon survives only as far as its holding was “independently
supported by the text of the statute.” Id. at 288.
The majority here, like the court in Drew, makes no pretense of textual
fidelity. Not once does it look to the text. Instead, the majority applies
Cannon rather than Sandoval because the statute here is more like the one at
15
Stokes v. Sw. Airlines, 887 F.3d 199, 205 (5th Cir. 2018) (alteration adopted)
(quoting Conservation Force v. Delta Air Lines, Inc., 190 F. Supp. 3d 606, 616 (N.D. Tex.
2016)).
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issue in Cannon and less like the one in Sandoval. Ante at 9. That is like
holding that, because a case’s facts are closer to Swift v. Tyson, 41 U.S.
(16 Pet.) 1 (1842), than they are to Erie Railroad Co. v. Tompkins, 304 U.S. 64(1938), the general common law governs after all. That holding would be
wrong.
As with Swift and Erie, the difference between Sandoval and Cannon
is one of method. The post-Sandoval Court waxes scholastic about that far-
off time when the existence of statutory rights implied the existence of
remedies. See Ziglar v. Abbasi, 137 S. Ct. 1843, 1855 (2017). Judicial invention
is dead. Yet this majority exhumes it to wring one last blunder from its
corpse. “Sandoval does not apply,” the majority declares, because Title VII
“contains rights-creating language.” Ante at 12. That reasoning defies
Sandoval’s holding that the statute’s text must create “not just a private right
but also a private remedy.” 532 U.S. at 286 (emphasis added). We cannot so
lightly ignore the Supreme Court’s commands.16
The majority takes pains to stress that the plaintiffs’ injury is unique.
That is why, the majority claims, this circumstance has never occurred before
in the history of man, and why recognizing it will not flood the courts with
similar suits. That’s all wrong, of course. More on that soon. But the
majority does not, and could not, offer any such assurances about its
resurrection of Drew and cabining of Sandoval.
The decades-long shift from cases like Drew and toward those like
Sandoval was a triumph of textualism and judicial restraint. One might have
expected this majority to approve, but that is beside the point. What matters
16
See Stokes, 887 F.3d at 204 (“When the Supreme Court expressly or implicitly
overrules one of our precedents, we have the authority and obligation to declare and imple-
ment this change in the law.” (cleaned up)).
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is this: Under the majority’s reading of Title VII, every private employee in
Texas, Louisiana, and Mississippi now has a cause of action to seek a
preliminary injunction. And that is not half the problem: With Sandoval
recast as a mere reading of one section of Title VI, every other statute that
acknowledges some right may now have new remedies forced into it.
It’s difficult to imagine what creative lawyers—not to mention federal
judges spurred on by zealous law clerks—will do with these new tools. But a
safe guess is that there will be more work for courts, more disruption and
uncertainty for private business, and more power for judges. Whether those
are good things is not up to us.
For the majority to enact that sweeping change is, at the very least,
regrettable. Departing from our well-established procedures, by not
publishing the opinion, undermines the decisionmaking process of this
common-law court. But I get ahead of myself.
III.
Suppose that’s all wrong. For purposes of a purely academic
discussion, let’s pretend that Drew permits private plaintiffs to obtain
preliminary injunctive relief, despite decades of contrary binding precedent
and the text and structure of Title VII. Even then, we must affirm because
the plaintiffs have not proved their irreparable harm.
Decades of precedent and centuries of Anglo-American legal practice
are clear: Preliminary injunctive relief is unavailable where there’s an
adequate remedy at law. That principle resolves this case. Because Title VII
entitles successful plaintiffs to robust legal and equitable remedies, the choice
between seeking those remedies and refusing United’s accommodation is
neither an impossible choice nor an irreparable harm. And even if it were
both, the instant plaintiffs who have standing claim no harm from that “crisis
of conscience,” as even the majority admits. See ante at 19 n.14.
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To conquer those nettlesome facts, the majority erases decades of pre-
cedent requiring our plaintiffs to plead and prove irreparable injury. It then
invents a new per se rule: To show irreparable harm, a Title VII plaintiff need
only allege “ongoing coercion because of a protected characteristic.” Ante
at 22 (emphasis omitted). Find that rule in the statute, our caselaw, or the
law of any federal circuit. You won’t; it’s completely fabricated.
A.
Equitable relief is extraordinary. It is unavailable where there is an
adequate remedy at law.17 As every judge should know, the classic remedy at
law is an award of damages.18 That has been the law for centuries.19
To be sure, the mere availability of damages does not justify denying
equitable relief. Damages may not suffice where the plaintiff’s injury defies
17
See, e.g., Hipp ex rel. Cuesta v. Babin, 60 U.S. (19 How.) 271, 277 (1856); see also
O’Shea v. Littleton, 414 U.S. 488, 499 (1974) (“Courts of equity should not act . . . when
the moving party has an adequate remedy at law . . . .” (cleaned up)); 1 Norman
Fetter, Handbook of Equity Jurisprudence 10 (1895) (“Wherever a court of
law . . . has power to proceed to a judgment which affords a plain, adequate, and complete
remedy, the plaintiff must proceed at law . . . .”).
18
See 11A Charles Alan Wright & Arthur R. Miller, Federal
Practice & Procedure § 2944 (3d ed), Westlaw (database updated Apr. 2021) (“[I]f
[a] plaintiff . . . can bring a legal action and seek damages that will provide full compen-
sation, . . . the alternative remedy is adequate.”); see also Beacon Theatres, Inc. v. Westover,
359 U.S. 500, 509 (1959) (“[E]quity has always acted only when legal remedies were
inadequate . . . .”).
19
See, e.g., 2 Joseph Story, Commentaries on Equity Jurispru-
dence 104 (1st ed. 1836) (“It may be stated, as a general proposition, that, for breaches
of contract and other wrongs and injuries, cognizable at law, Courts of Equity do not
entertain jurisdiction to give redress by way of compensation or damages . . . . And, indeed,
the just foundation of equitable jurisdiction fails in all such cases, as there is a plain,
complete, and adequate remedy at law.”); 1 id. at 5 (tracing Anglo-American equity
jurisprudence to Roman law, which limited equity’s power to those cases “not regulated
by some express or written law”).
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measurement or where damages cannot redress it.20 For example, harms to
real property, every plot of which is unique, often call for equitable remedies,
while harms to personal property do not.21 For like reason, constitutional
violations inflict irreparable harm. See, e.g., BST Holdings, L.L.C. v. OSHA,
17 F.4th 604, 618 (5th Cir. 2021). “[D]ollars and cents” cannot capture the
damage that the government inflicts when it deprives rights that it exists to
defend. Id.But where a remedy of damages is available and adequate, equity has
no role, even if that remedy is not available right away. That rule makes good
sense. “A preliminary injunction is an extraordinary and drastic remedy.”
White, 862 F.2d at 1211 (cleaned up). It would become ordinary, if not
mandatory, if the years of litigation standing between a plaintiff and his
remedy would render that remedy inadequate.
The courts in Sampson v. Murray, 415 U.S. 61 (1974), and Morgan v.
Fletcher, 518 F.2d 236 (5th Cir. 1975), applied that principle to employment-
discrimination cases.
In Murray, a federal court had temporarily enjoined the termination of
a government employee. 415 U.S. at 66–67. Rejecting the court’s finding of
irreparable injury, the Court reversed. It explained that neither “the
temporary loss of income” nor the “money, time, and energy necessarily
expended in the absence of a stay” can show irreparable injury when
20
See 11A Wright & Miller, supra note 18, § 2944.
21
Compare 5 John Norton Pomeroy & John Norton Pomeroy Jr.,
Treatise on Equity Jurisprudence § 2092, at 4713 (4th ed. 1919) (“In cases
involving personal property there is ordinarily a complete and adequate remedy at law, and
therefore relief is as a rule refused.”), with id. § 1909, at 4327–28 (citing the law of trespass
as an example of how some courts “treat land as per se property of peculiar value,” awarding
“specific performance without reference to [the land’s] quality, use[,] or value”).
37
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“adequate compensatory or other corrective relief will be available at a later
date.” Id. at 90 (cleaned up). Perhaps irreparable injury would arise in an
“extraordinary” case. Id. at 92 n.68. But as if anticipating this case, the
Court stressed that an “insufficiency of savings” or other “external factors
common to most discharged employees and not attributable to any unusual
actions relating to the discharge itself . . . will not support a finding of
irreparable injury, however severely they may affect” the plaintiffs. Id.
(emphasis added).
In Morgan, we applied Murray to reverse a preliminary injunction.
518 F.2d at 239–41. The district court had enjoined an agency from firing the
plaintiff, finding irreparable injury because the plaintiff earned half her
household’s income and would lose her health insurance and her home if she
were removed. Id. at 238–39. We acknowledged those findings but reversed.
Any loss of income was “temporary,” we reasoned, because the statute
would provide “full back pay should her discharge later prove wrongful.” Id.
at 240. Of course, that statement isn’t strictly true. If the plaintiff lost her
home, she might never recover it. But damages need not address every
conceivable effect of job loss to be adequate. Those indirect harms—all the
things that lost wages cause—“are not the type of irreparable harm justifying
injunctive relief.” White, 862 F.2d at 1213 (citing Morgan, 518 F.2d at 240).
Lest anyone doubt that that principle applies in Title VII cases, we
applied it in White v. Carlucci. White, a civilian employee of the U.S. Navy,
accused the Navy of racial discrimination. 862 F.2d at 1210. Two months
later, the Navy reassigned him. White asked the district court to enjoin that
decision while he pressed his discrimination claim. The district court
declined, noting that White had not proved irreparable harm. White
appealed, insisting that stating a Title VII claim sufficed to show irreparable
injury. See id. at 1211.
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We rejected that “untenable assertion” and affirmed. Id. at 1213.
“Without question,” we stated, “the irreparable harm element must be
satisfied by independent proof, or no injunction may issue.” Id. at 1211.
Applying Murray and its progeny, we found White’s proof wanting and
affirmed the district court. See id. at 1212–13.
B.
Our precedents make this an easy case. Title VII supplies adequate
remedies at law. And the plaintiffs’ claimed harm—the coercive effect of
lost income—stems from “the temporary loss of income, ultimately to be
recovered.” Murray, 415 U.S. at 90 (cleaned up). We have repeatedly said
that is not irreparable harm. Id.; Morgan, 518 F.2d at 240; White, 862 F.2d at
1213. No injunction may issue.
1.
The plaintiffs have an adequate remedy at law. Indeed, that’s a gross
understatement: Title VII confers enviable remedies. If the plaintiffs win at
trial, the district court may order back pay, reinstatement, “or any other
equitable relief as the court deems appropriate.” 42 U.S.C. § 2000e-5(g)(1).
The factfinder also may compensate “future pecuniary losses, emotional
pain, suffering, inconvenience, mental anguish, loss of enjoyment of life, and
other nonpecuniary losses.” Id. § 1981a(b)(3). Even punitive damages are
available, if the plaintiffs prove that United acted “with malice or with reck-
less indifference” to their rights. Id. § 1981a(b)(1). And the court may award
“a reasonable attorney’s fee, including expert fees,” to the winning side. Id.
§ 2000e-5(k) (cleaned up). The mere “possibility” of those sweeping reme-
dies “weighs heavily against a claim of irreparable harm.” Murray, 415 U.S.
at 90 (cleaned up).
The plaintiffs insist that their case is “extraordinary,” id. at 92 n.68,
because the mounting hardship of lost pay may “coerce” them to breach
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their religious commitments, which would inflict irreparable harm. “Each
day,” they say, “the pressure to choose between a job and a jab” grows
“heavier” (cleaned up).
But that gives away the store. At bottom, the plaintiffs complain that
they might decline unpaid leave and take the vaccine because back pay,
reinstatement, and other postjudgment remedies are unavailable during their
suit. That means, though, that the alleged coercion stems only from “the
temporary loss of income, ultimately to be recovered” if the plaintiffs win at
trial. Id. at 90.
Our caselaw leaves no doubt: That injury is reparable. See id. Even
the majority admits that “unpaid leave . . . and any harm that flows from it”
are reparable harms. Ante at 16 (emphasis added). I agree. That means the
plaintiffs must lose on this limited, interlocutory appeal.
Finding irreparable harm here would contravene decades of settled
precedent. The indefinite loss of income is not irreparable injury. Murray,
415 U.S. at 89. Nor is reputational harm. Id. Nor are costs incurred “in the
absence of a stay.” Id. at 90. Nor is losing one’s health insurance or home.
Morgan, 518 F.2d at 238–40. Nor is reassignment. White, 862 F.2d at 1212.
Nor is the appointment of another person to a position the plaintiff would
have occupied but for the employer’s unlawful discrimination. Parks v.
Dunlop, 517 F.2d 785, 787 (5th Cir. 1975) (per curiam).
In short, neither the loss of income nor any result of that loss is
irreparable injury. Our plaintiffs allege a harm that results from that loss of
income, so their harm is not irreparable. We need no logician to get that
answer.
This is not the “extraordinary” case that Murray suggested could
warrant preliminary relief. Irreparable harm is harm that destroys the court’s
power “to render a meaningful decision on the merits.” Canal Auth. v.
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Callaway, 489 F.2d 567, 576 (5th Cir. 1974). But these plaintiffs’ injuries
have legal remedies; Title VII offers back pay, reinstatement, lost seniority,
emotional damages, and many other remedies.
If plaintiffs persist, they may win those remedies. So for their case to
be special, they must show that those remedies are unavailable, but they have
not done that—not even close. They haven’t shown that United lacks the
funds to comply with an adverse final judgment, for example, 22 or that
“recoupment will be impossible” absent an injunction. Conkright v.
Frommert, 556 U.S. 1401, 1403 (2009) (Ginsburg, J., in chambers). Without
that showing, our plaintiffs cannot transform their ordinary, compensable
harms into irreparable ones.
The interim loss of pay may make it harder for the plaintiffs to press
their case. But that’s true of nearly every plaintiff who accuses her employer
of discrimination after being fired, yet we may not restore those plaintiffs to
their jobs just to assuage the hardships of litigating their cases to judgment.23
That principle holds even when the reparable harm from the interim loss of
pay spawns more remote harms (such as the foreclosure of one’s home) as
the case proceeds.24
22
See Philip Morris USA Inc. v. Scott, 561 U.S. 1301, 1304 (2010) (Scalia, J., in
chambers) (“Normally the mere payment of money is not considered irreparable, but that
is because money can usually be recovered from the person to whom it is paid. If expen-
ditures cannot be recouped, the resulting loss may be irreparable.” (citing Murray, 415 U.S.
at 90)).
23
See, e.g., Van Arsdel v. Texas A&M Univ., 628 F.2d 344, 346 (5th Cir. 1980)
(“Since reinstatement after trial, coupled with back pay, would suffice to redress appellee’s
alleged wrong, we find that the preliminary injunction must be vacated.”).
24
See White, 862 F.2d at 1212–13 (citing Morgan, 518 F.2d at 240); see also Murray,
415 U.S. at 92 n.68 (“[A]n insufficiency of savings . . . will not support a finding of irrepara-
ble injury, however severely [it] may affect a particular individual.” (emphasis added)).
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2.
Despite our settled law, the majority concludes that the plaintiffs have
suffered irreparable injury. That conclusion rests on at least two faulty legal
premises. The first is that the plaintiffs pleaded a coercion injury that’s
somehow distinct from any adverse employment action. The second is that
United’s alleged Title VII sin is so severe that the plaintiffs have established
irreparable injury.
The first premise is both wrong and irrelevant, and the second is
nonsense that our precedent expressly forbids.
a.
The majority concedes, as it must, that harms flowing from an adverse
employment action are not irreparable, given that federal law supplies
attractive postjudgment remedies, including back pay and reinstatement.
But that creates a problem for the majority; it means that these plaintiffs, who
have alleged such a harm, cannot show irreparable injury.
Because the “impossible choice” theory is a loser, the majority
rewrites it. It insists that the plaintiffs alleged a coercion injury distinct from
United’s offer of unpaid leave. The plaintiffs’ harm is irreparable, the
majority contends, because it is “antecedent to, independent from, and
exogenous to any adverse employment action.” Ante at 16. “Crucially,” the
majority explains, “plaintiffs are not seeking an injunction to prevent an
adverse employment action or any harm stemming from such action”; they
“are not merely seeking to prevent or undo the placement on unpaid leave
itself.” Ante at 16, 21–22. Instead, the majority says, the “[p]laintiffs
specifically allege that United wants to coerce them into getting a vaccine that
violates their sincerely held religious beliefs and thus avoid any adverse
employment action.” Ante at 16.
None of that is true. The plaintiffs brought this appeal to stop United
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from placing them on unpaid leave—because unpaid leave is an adverse
employment action that violates Title VII. That is the whole point of their suit.
That’s what they told both the district court25 and us.
If I didn’t know better, I might surmise that the majority didn’t even
read the plaintiffs’ brief. “[T]his appeal presents a narrow question,” the
first page says. “Do workers suffer immediate and irreparable injury when
an employer . . . offers only indefinite unpaid leave as an accommodation?”
Did the majority read United’s? “[Plaintiffs] seek the extraordinary remedy
of a preliminary injunction prohibiting use of temporary unpaid leave as an
accommodation . . . .”
The record is to the same effect. The original and amended
complaints state at least six times each that unpaid leave is an adverse
25
The plaintiffs posited that an injunction should issue because they “will . . . be
able to show that they suffered an adverse employment action. The only accommodation
United offered was indefinite unpaid leave, and leave without pay differs very little from
termination . . . . Plaintiffs are thus likely to satisfy the ‘adverse employment action’
requirement.”
The plaintiffs repeated that theory ad nauseam. Here are two other examples; there
are many more:
• “United failed to provide Plaintiffs with reasonable accommodations for
their religious beliefs, as indefinite unpaid leave is not a reasonable accom-
modation. Instead, indefinite unpaid leave is an adverse employment
action.” Plaintiffs’ Class Action Complaint, ¶ 129 (ECF No. 1); see also
id. ¶ 137 (“United’s . . . draconian threat of years of unpaid leave is an
adverse employment action intended to force employees to forgo their
religious beliefs and receive the COVID-19 vaccine.”).
• “[E]ven relatively brief periods of unpaid leave—when not requested by
the employee as an accommodation—is an adverse employment action.
An adverse employment action, that keeps people out of work, is neither
reasonable nor an accommodation . . . .” Plaintiffs’ Resp. to Defendant’s
Advice to the Court at 1 (ECF No. 96).
43
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employment action.26 And on the same basis, the plaintiffs sought “a
preliminary injunction enjoining United from terminat[ing] or placing on
indefinite unpaid leave any employee with a religious or medical basis for
seeking an accommodation . . . .”
The district court declined; that is the order on appeal. The plaintiffs
are seeking exactly what the majority says they are not—and claim precisely
the harm that the majority admits cannot warrant a preliminary injunction.27
But let’s patronize. Let’s suppose the plaintiffs’ claims were as the
majority describes: Rather than vying to end United’s unpaid-leave
accommodation, the plaintiffs had asked us just to undo United’s
“exogenous” coercion, whatever that is. Ante at 16.
If that’s right, this case is over. The plaintiffs would lack a Title VII
cause of action. Title VII prohibits “adverse employment actions.”28 It does
26
“United failed to provide Plaintiffs with reasonable accommodations for their
religious beliefs, as indefinite unpaid leave is not a reasonable accommodation. Instead,
indefinite unpaid leave is an adverse employment action. United thereby discriminated against
Plaintiffs because of their religious beliefs . . . . United’s discriminatory actions were . . . in
violation of Title VII.” Plaintiffs’ Amended Class Action Complaint ¶¶ 132–35 (ECF
No. 67) (emphasis added); see also id. ¶¶ 140, 141, 156, 157, 158; Plaintiffs’ Class Action
Complaint, ¶¶ 129, 137, 138, 153, 154, 155 (ECF No. 1).
The plaintiffs’ third count—an ADA failure-to-accommodate claim—does not
require an adverse employment action. Instead, the employee must show that her “em-
ployer failed to make reasonable accommodations” for her disability. Jennings v. Towers
Watson, 11 F.4th 335, 343 (5th Cir. 2021) (cleaned up). Lo and behold, paragraph 149 of
the amended complaint and paragraph 146 of the original complaint state that “indefinite
unpaid leave” is also—you guessed it—a “failure to accommodate.”
27
See ante at 14 (“A Title VII plaintiff is obviously injured by an adverse employ-
ment action, and that adverse action can in turn cause all sorts of other harms. But under
Sampson [v. Murray], none of those harms can support a preliminary injunction.”).
28
See 42 U.S.C. § 2000e-2(a) (“It shall be an unlawful employment practice for an
employer to . . . discriminate against any individual with respect to his compensation, terms,
44
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not prohibit actions that are “antecedent to, independent from, and
exogenous to”— a long way of saying not—adverse employment actions. If,
as the majority suggests, the plaintiffs did not plead that unpaid leave is an
adverse employment action, then forget an injunction; no relief may issue.29
b.
The majority then tries a different tack. The key fact here, the
majority thinks, is that United didn’t just fire its objecting employees. It did
something much worse: By accommodating them with unpaid leave, United
“enlisted employees and their families in the project of reforming
employees’ religious commitments.” “Putting employees to this coercive
choice,” the majority explains, “imposes a distinct and irreparable harm
beyond lost pay, benefits, seniority, and other tangible and remediable
losses.” Ante at 21.30 That harm, the majority says, is “ongoing coercion
conditions, or privileges of employment, because of such individual’s . . . religion . . . .”
(emphasis added)); see also Stroy v. Gibson, 896 F.3d 693, 699 (5th Cir. 2018) (Elrod, J.)
(requiring an “adverse employment action” to sustain a Title VII discrimination claim);
Wright v. Union Pac. R.R. Co., 990 F.3d 428, 433 (5th Cir. 2021) (“To establish Title VII
retaliation, Wright must show that . . . she suffered an adverse employment action . . . .”);
Seaman v. CSPH, Inc., 179 F.3d 297, 301 (5th Cir. 1999) (same, for ADA retaliation);
Jennings, 11 F.4th at 344 (same, for a disability-discrimination claim). The term “adverse
employment action” is how courts refer to Title VII’s requirement that a plaintiff must
identify “an employment decision that affects the terms and conditions of employment.”
Thompson v. City of Waco, 764 F.3d 500, 503 (5th Cir. 2014).
29
See Big Time Vapes, Inc. v. FDA, 963 F.3d 436, 444 n.22 (5th Cir. 2020) (“[B]e-
cause the plaintiffs haven’t stated a claim, they cannot show that the district court abused
its discretion in denying them a preliminary injunction.”), cert. denied, 141 S. Ct. 2746(2021).
30
No good deed goes unpunished. In adopting the theory that the act of choosing
harms the plaintiffs, the majority rebukes United as Dostoevsky’s Grand Inquisitor
rebuked Jesus: “Instead of taking over men’s freedom, you increased it and forever
burdened [the plaintiffs] with its torments . . . . [D]id it not occur to you that he would
eventually [sue] if he was oppressed by so terrible a burden as freedom of choice?”
45
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because of a protected characteristic.” Ante at 22 (emphasis omitted).
That passage, like the rest of the majority opinion, assumes that the
severity of United’s perceived wrong proves the plaintiffs’ irreparable harm.
By putting plaintiffs to the “coercive choice” between unpaid leave and
vaccination, United “discriminate[d] against” its employees “with respect
to [their] compensation, terms, conditions, or privileges of employment,
because of [their] . . . religion.” 42 U.S.C. § 2000e-2(a)(1). From that
assertion of Title VII liability, the majority concludes that United irreparably
harmed the plaintiffs.
Our precedent forbids that mistake. White explained that
there is no nexus between the strength and nature of the
underlying [Title VII] claim and the element of irreparable
harm. Such irreparable harm must be proven separately and
convincingly. The burden of proof is not reduced by either the
existence of an extremely strong likelihood of success or the
egregiousness of the alleged wrong upon which the underlying claim
is based.
862 F.2d at 1212 (emphasis added). The point we made in White is clear and
irrefutable: The severity of the Title VII injury proves nothing about
irreparable harm. Whether United pressured the plaintiffs to abandon their
religious commitments may tell us whether United violated the law. But the
fact of that violation, even if proved, cannot show whether the harms that
result are irreparable.
The majority insists that it does not disregard White, which, the
Fyodor Dostoevsky, The Brothers Karamazov 255 (Richard Pevear &
Larissa Volokhonsky trans., 12th ed. 2002). Let United be grateful that its punishment is
a mere injunction. “For if anyone has ever deserved our stake, it is” he who forgets that
“even death [is] dearer to man than free choice.” Id. at 254, 260.
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majority claims, does not control because the plaintiffs ask us to enjoin an
“independent harm,” not an adverse employment action. Ante at 15. But if
that were true, then the plaintiffs would not have stated a Title VII claim and
thus could get no relief from this court, as I’ve explained. The majority never
addresses that problem, and I don’t see how it could. Our plaintiffs have
endured Schrödinger’s harm: It stems from Title VII and does not stem from
Title VII at the same time—whichever suits the majority’s need.
C.
But suppose that everything I’ve said is wrong. Let’s posit, instead,
that we accept that a “crisis of conscience” resulting from an adverse
employment action may constitute irreparable injury, despite decades of
contrary precedent and bedrock principles of the law of remedies. Even then,
the plaintiffs should lose, because the record does not show that they are
likely to suffer the harm that they allege.
The majority admits that fact but declares it irrelevant. Casting aside
circuit precedent that requires Title VII plaintiffs to plead and prove
irreparable harm, the majority invents a new per se rule: When an employee
alleges “ongoing coercion because of a protected characteristic,” irreparable
harm exists, no matter what the record shows. Never mind that the Supreme
Court has told us not to fashion such presumptions. Nothing, especially not
the law, will thwart this majority’s plans.
1.
Sambrano and Kincannon are the only plaintiffs who face unpaid
leave. According to the majority, they will suffer irreparable harm without
an injunction because United is forcing them to choose between adhering to
their faith and “put[ting] food on the table.” Ante at 19. The plaintiffs, the
majority asserts, endure “a crisis of conscience” about their religious
convictions. Ante at 20.
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But the record belies that conclusion. Neither plaintiff testified to
facing a “crisis of conscience” or anything like it, so neither has shown that
“irreparable injury is likely in the absence of an injunction.” Winter v. Nat.
Res. Def. Council, Inc., 555 U.S. 7, 22 (2008). That means no injunction may
issue.
Sambrano, the pilot, declined the vaccine because he believes that it
was developed with aborted fetal tissue. United accommodated Sambrano
with unpaid leave. In his affidavit, Sambrano stated that his annual salary
exceeds $350,000. He then explained that
[t]he current situation has put terrible stress on me and my
family. If I cannot continue earning a paycheck, we will have
to make difficult choices regarding the college education of
three children, one of whom is currently in college, and my . . .
twins who will be going to college soon. For my child currently
in college, the loss of an income source could put in jeopardy
my ability to continue paying tuition. Additionally, there are
many opportunities we have been pursuing as a family that I
cannot afford if I lose my United salary.
In his live testimony, Sambrano stressed how lost seniority would affect him.
Seniority, he said,
determines the lifestyle you have. It determines the house you
are able to afford and the place that you want to live in. It
determines the schools your children go to. It determines the
time off that one has. It determines whether I’m going to be
there for my kids—or my children’s events . . . . It determines
whether I have weekends off . . . .
Not once did Sambrano say or suggest that he felt a “crisis of
conscience” or pressure “to abandon [his] religious commitments.” Ante at
20. Instead, he noted the effects of unpaid leave on his lifestyle and on his
ability to pay for his child’s college tuition. Such harms, the majority
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concedes, are reparable.31
Kincannon refused the vaccine for the same reason and received a like
accommodation. A flight attendant, she earns 35% of her household’s
income. She said that unpaid leave will require her family to change its “daily
financial decisions” and may threaten her ability to afford college tuition.
She also testified to marital strain, personal stress, and her fear of “losing
good friends at work.” But no crisis of conscience. “No matter the cost,”
she swore, “I will never take this vaccine.” 32
The majority says those facts don’t matter a whit. A nonparty United
employee testified that he took the vaccine despite his religious objections,
the majority contends, so we can ignore that our “plaintiffs say they will never
get the COVID-19 vaccine.” Ante at 19 n.14. “[E]ven if that is true now,”
the majority reasons, “it does not mean it will always be so.” Id.That fortune-cookie aphorism would find irreparable harm every-
where. Such is not the law, except according to this panel majority. A
plaintiff seeking preliminary relief must show that irreparable harm is likely
without it. Winter, 555 U.S. at 22. And because the plaintiff is the one
seeking relief, the plaintiff must show that she will endure that harm if no
injunction issues. Id. at 20.
Our plaintiffs have shown neither. That a nonparty took the vaccine
despite his religious objections tells us nothing about the likelihood of harm
to the plaintiffs. But even if relevant, that fact suggests, at most, only a remote
31
See ante at 16 (“[U]npaid leave . . . and any harm that flows from it, can be reme-
died through backpay, reinstatement, or otherwise.”).
32
Cf. 1 Corinthians 10:13 (“God is faithful, and he will not let you be tested beyond
your strength . . . .”).
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chance of future harm. That does not suffice.33
2.
The record cannot support a finding that the plaintiffs suffered the
“crisis of conscience” on which they base their demand for relief. So once
again, the majority junks our precedent to get the answer it wants.
a.
Our caselaw commands that Title VII plaintiffs must plead and prove
irreparable harm.
In White, we decided “whether and to what extent a Title VII plaintiff
must show a likelihood of irreparable harm for a preliminary injunction to
issue.” 862 F.2d at 1210. We said that a Title VII plaintiff “must establish
irreparable harm” through a specific factual showing. See id. at 1213. White’s
plaintiff did not meet that test, we explained, because he “does not, and
cannot, make any fact-specific argument as to how he will be irreparably
harmed.” Id. (emphasis added). We also rejected the plaintiff’s “untenable
assertion” that “the nature of his [Title VII] claim eliminates the need for
such a showing.” Id.Twice over, White forecloses our plaintiffs’ “impossible choice”
theory.
First, White requires plaintiffs to identify specific facts showing that
they are likely to suffer irreparable harm. Neither of our plaintiffs has done
that. Neither Sambrano nor Kincannon testified to feeling any pressure to
abandon religious beliefs. They cited other difficulties—lifestyle changes,
33
Id. at 22; see also O’Shea, 414 U.S. at 502 (describing “the likelihood of sub-
stantial and immediate irreparable injury” as a “basic requisite[ ] of the issuance of equita-
ble relief”).
50
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reduced financial security, and the like—which even the majority concedes
are reparable harms. See, e.g., ante at 14–16.
Second, White held that the need to show irreparable harm cannot vary
with “the nature” of the Title VII claim. That means we cannot excuse our
plaintiffs’ failure to prove their irreparable harm with specific facts. When a
plaintiff pleads a Title VII claim, it does not matter who the plaintiff is, what
he alleges, or whom he sues. That plaintiff must supply “independent
proof” of irreparable harm, or no preliminary relief may issue. White,
862 F.2d at 1211.
b.
Unable to overcome White, the majority guts it. No longer must
Title VII plaintiffs prove their irreparable harm. Instead, the majority
transforms the “untenable assertion” that White repudiated into the law of
this circuit. Now, the nature of a Title VII claim can erase the need to show
irreparable harm: When a plaintiff pleads “ongoing coercion because of a
protected characteristic,” the majority holds, “the irreparable harm factor
. . . is satisfied.” Ante at 22 (emphasis omitted).
The majority describes its made-up rule as a natural outgrowth from
our First Amendment caselaw. We assume irreparable harm when the gov-
ernment violates constitutional34 and statutory free-exercise rights. Because
United’s coercion feels the same to our plaintiffs as government coercion
would feel, the majority suggests, we may assume irreparable harm here,
too.35 Because “we consider only whether plaintiffs are likely to suffer
34
See, e.g., Elrod v. Burns, 427 U.S. 347, 373 (1976); BST Holdings, 17 F.4th at 618.
35
See ante at 17; see also Sambrano v. United Airlines, Inc., 19 F.4th 839, 841–42 (5th
Cir. 2021) (Ho, J., dissenting) (“[T]o the person of faith who is forced to confront this
challenge of conscience, what matters is not who imposed the mandate, but that the
51
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irreparable harm,” the majority says, all that matters is “the effect of the
defendant’s action on the plaintiffs.” Ante at 17.
The majority’s illogic proceeds from a faulty premise. The “effect of
the defendant’s action on the plaintiffs” is not the same in constitutional
cases because constitutional violations work a different harm. Government
exists to protect and uphold the Constitution. When government exceeds
the consent of the governed to deny the rights it has sworn to protect, that
betrayal is a unique, freestanding, and immeasurable injury—distinct from
the results of the government’s misconduct, which damages may remedy. 36
It matters not that the injury to free exercise feels the same to the
plaintiffs; what matters is that the injury is in fact different. Importantly, our
plaintiffs did not plead a constitutional injury.
Unlike constitutional injuries, Title VII injuries are neither unique nor
freestanding. Our plaintiffs’ cause of action exists at the pleasure of
Congress; it is not the foundation of our social compact. Nor is there the
same measurement problem; there’s no question how to make an employee
whole for a Title VII injury. When an employer violates Title VII, we need
only decide how much compensation—back pay, reinstatement, and the
mandate conflicts with religious conviction . . . . Whether the interference with religious
conviction comes from the public or private sector, a person of faith suffers a harm that
cannot be adequately compensated monetarily.” (citation omitted)).
36
See 11A Wright & Miller, supra note 18, § 2948.1 (“When an alleged depri-
vation of a constitutional right is involved, . . . most courts hold that no further showing of
irreparable injury is necessary.” (emphasis added) (footnotes omitted)); 13 Moore’s
Fed. Prac. § 65.22 (3d ed.) (noting that the “deprivation of constitutional rights” has
“ordinarily been held to be irreparable” (emphasis added)), Lexis (database updated Dec.
2021). But see Anthony DiSarro, A Farewell to Harms: Against Presuming Irreparable Injury
in Constitutional Litigation, 35 Harv. J.L. & Pub. Pol’y 743, 763–65 (2012) (arguing
that Elrod’s statement that First Amendment harms are irreparable is legally
“indefensible”).
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like—will restore the employee to the position she would have occupied but
for the employer’s violation. Cf. Claiborne v. Ill. Cent. R.R., 583 F.2d 143,
149 (5th Cir. 1978). That is how we and the Court have always treated such
cases, and that is why postjudgment relief has always sufficed. See, e.g.,
White, 862 F.2d at 1212–13; Morgan, 518 F.2d at 240; see also Murray, 415
U.S. at 89–91.
That point exposes a bizarre consequence of the majority’s position.
The majority draws on constitutional law to justify its presumption.
Constitutional harm is special, as I’ve explained, because the government
inflicts it. Yet we do not presume irreparable harm in Title VII cases against
the government. We know that because White addressed a Title VII claim by
a government employee, 862 F.2d at 1210, and required that plaintiff to plead
and prove his irreparable harm, id. at 1213. So if the majority has not annulled
White, our law is now an absurdity: When private parties, who cannot violate
the Constitution, violate Title VII, we must presume irreparable harm
because those violations “feel like” constitutional injuries. Yet we do not
presume irreparable harm when plaintiffs bring the same claims against the
government. Color me confused.
To salvage its groundless presumption, the majority highlights Opu-
lent Life Church v. City of Holly Springs, 697 F.3d 279 (5th Cir. 2012). There,
we presumed irreparable harm from a church’s claims under the First
Amendment and RLUIPA, a federal law that prohibits governments from
substantially burdening religious exercise.37 Like Title VII, RLUIPA is a stat-
ute. Thus, the majority concludes, we may presume irreparable harm.
Opulent Life itself rejects that sloppy reasoning. After stating that the
37
RLUIPA stands for the “Religious Land Use and Institutionalized Persons Act”
and is codified at 42 U.S.C. § 2000cc et seq.
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church’s First Amendment claims warranted a presumption of irreparable
harm, Judge Elrod wrote that this “principle applies with equal force to the
violation of RLUIPA rights because RLUIPA enforces First Amendment free-
doms.” Opulent Life, 697 F.3d at 295 (emphasis added). Unlike RLUIPA,
Title VII does not, and could not, enforce First Amendment freedoms
against private parties. The Constitution applies to the United States, not to
United Airlines. See, e.g., Hudgens v. NLRB, 424 U.S. 507, 513 (1976).
The majority also asserts that Congress desired to “protect the same
rights in private employment as the Constitution protects.” Ante at 18
(citation omitted). But even if that were true, that desire could not transform
a statutory injury into a constitutional one. Congress may only enforce
constitutional rights; it cannot “determine what constitutes a constitutional
violation.” City of Boerne v. Flores, 521 U.S. 507, 519 (1997).
Of course, Congress may instruct us to presume irreparable harm for
certain statutory violations. It did that last year when amending the Lanham
Act.38 But Title VII does no such thing, so we must await legislative
command. A presumption of irreparable harm is “a major departure from
the long tradition of equity practice,” which “should not be lightly implied.”
eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (cleaned up).
Once again, the majority snubs the Supreme Court to remake the law for
these plaintiffs and their favored cause.
* * * * *
The majority’s treatment of irreparable harm flouts blackletter law,
the record, and even the Supreme Court. But I pause here to protest how the
38
See 15 U.S.C. § 1116(a) (creating a “rebuttable presumption of irreparable harm”
for certain Lanham Act plaintiffs).
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majority tortures our precedent to extract its desired result.
The majority admits that it cannot overrule circuit precedent “absent
an intervening change in the law, such as by a statutory amendment, or the
Supreme Court, or our en banc court.” Ante at 13 (quoting In re Bonvillian
Marine Serv., Inc., 19 F.4th 787, 792 (5th Cir. 2021)). Indeed, my colleagues
repeatedly invoke that rule of orderliness to defend their fanatic devotion to
Drew, a fifty-year-old case that employs an interpretative method that the
Court repudiated in Sandoval. The majority then scraps White without citing
even one case or statute precluding its control here.39
That move is astounding. The rule of orderliness binds us “to follow
our earlier precedent, and [we] must in any event adhere to Supreme Court
precedent.” Yates v. Collier, 868 F.3d 354, 365 n.6 (5th Cir. 2017) (Elrod, J.).
Yet this majority ignores White, defies Sandoval, and mows down countless
other authorities—all while it fashions from Drew a golden calf.40 I could
discern no reason for the majority’s selective orderliness,41 but for every error
39
Since its issuance in 1989, White, which I wrote, has been cited in nearly three
hundred cases. This court cites it routinely, though this majority casually sends it now to
the dustbin. Contrast Drew, which has not appeared in a Fifth Circuit opinion for more
than forty years.
40
Cf. Exodus 32.
41
See, e.g., Oliver v. Arnold, 19 F.4th 843, 855 (5th Cir. 2021) (en banc) (Elrod, J.,
dissenting from the denial of reh’g en banc) (contending that the rule of orderliness required
granting qualified immunity to a schoolteacher); Douglass v. Nippon Yusen Kabushiki
Kaisha, 996 F.3d 289, 300 (5th Cir.) (Elrod, J., specially concurring) (agreeing that the rule
of orderliness bound the panel and urging the en banc court to reconsider its precedent),
reh’g en banc granted, 2 F.4th 525 (5th Cir. 2021); Davis v. Fort Bend Cnty., 893 F.3d 300,
304–05 (5th Cir. 2018) (Elrod, J.) (applying the rule of orderliness and holding that
Title VII’s exhaustion requirement is a nonjurisdictional “prerequisite to suit”); Gahagan
v. U.S. Citizenship & Immigr. Servs., 911 F.3d 298, 302–04 (5th Cir. 2018) (Oldham, J.)
(applying the rule to overrule circuit precedent that the Court had implicitly rejected);
Norbert, 990 F.3d at 987 (Oldham, J., dissenting) (“Navarette binds us. It is the Supreme
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pointing toward the result my colleagues find most satisfying.
IV.
But suppose that’s all wrong. Let’s pretend that the plaintiffs have
shown irreparable injury. This court still should affirm the denial of a prelim-
inary injunction because the plaintiffs are not likely to succeed on the merits.
See Winter, 555 U.S. at 20.
Indeed, following the majority’s logic, we must look to that prong of
the preliminary-injunction test, because the cause of action that we devised
in Drew is available only in the “limited class of cases” in which “likelihood
of ultimate success has been established.”42 The district court made no find-
ings beyond irreparable harm, but we may affirm the denial of an injunction
on any basis that the record supports.43
The plaintiffs are unlikely—indeed, unable—to succeed on the merits
for two reasons, one procedural and one substantive. On procedure,
Title VII requires “an aggrieved individual [to] pursue administrative
Court’s most-recent decision on this topic. And it postdates [our contrary precedent] by
7 years. We have zero excuse for ignoring Navarette.”).
42
Drew, 480 F.2d at 72; see also Garza v. Tex. Educ. Found., Inc., 565 F.2d 909, 910
(5th Cir. 1978) (applying Drew).
43
“It is an elementary proposition, and the supporting cases too numerous to cite,
that this court may affirm the district court’s judgment on any grounds supported by the
record.” Palmer ex rel. Palmer v. Waxahachie Indep. Sch. Dist., 579 F.3d 502, 506 (5th Cir.
2009) (cleaned up).
White noted that would be inappropriate for this court to grant an injunction in this
posture, rather than to reverse on the issue of irreparable injury and remand, unless “the
record is exceptionally clear and remand would serve no useful purpose.” 862 F.2d
at 1210 n.1. But even if the plaintiffs’ other failings are not exceptionally clear, White does
not contradict the principle that this court may affirm the judgment—here being the denial
of an injunction—for reasons other than those that the district court gave. See, e.g., Morris
v. Homco Int’l, Inc., 853 F.2d 337, 345 (5th Cir. 1988).
56
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remedies before seeking judicial relief.” Lakoski, 66 F.3d at 753. Our
plaintiffs have not done that, so their claim fails. On substance, the plaintiffs
cannot win if accommodating their religious beliefs would impose an “undue
hardship” on United. See, e.g., Trans World Airlines, Inc. v. Hardison, 432
U.S. 63 (1977). Alternative accommodations would impose just such a
hardship.
A.
First, the procedural problem. For plaintiffs to prevail on a Title VII
claim, they must first exhaust their administrative remedies with the EEOC.
42 U.S.C. § 2000e-5(f)(1). To exhaust, plaintiffs “must file a timely charge
with the EEOC and then receive a notice of the right to sue.” Ernst v. Metho-
dist Hosp. Sys., 1 F.4th 333, 337 (5th Cir. 2021).
That exhaustion requirement is “a mainstay of proper enforcement of
Title VII remedies.” McClain v. Lufkin Indus., Inc., 519 F.3d 264, 272 (5th
Cir. 2008). It encourages parties to resolve their disputes without the cost
and delay of litigation.44 It protects the EEOC’s unique “investigative and
conciliatory functions” and its role “as the primary enforcer of antidiscrim-
ination laws” against private actors. Ernst, 1 F.4th at 337 (citation omitted).
Requiring exhaustion also protects courts from a flood of premature claims.45
For those reasons, “[c]ourts should not condone lawsuits that exceed the
44
Oatis v. Crown Zellerbach Corp., 398 F.2d 496, 498 (5th Cir. 1968); see also Davis,
893 F.3d at 307 (Elrod, J.) (Title VII’s requirement of “[a]dministrative exhaustion is im-
portant because it provides an opportunity for voluntary compliance before a civil action is
instituted.”); Pinkard v. Pullman-Standard, 678 F.2d 1211, 1220–21 (5th Cir. Unit B 1982)
(per curiam) (T. Clark, J., dissenting) (“[T]he EEOC effectively stands at the door of the
courthouse in the congressional scheme [of Title VII] . . . . The EEOC, if fully given the
chance to operate, may solve many employer-employee disputes through mediation.”).
45
See, e.g., Stroy, 896 F.3d at 698; see also Pinkard, 678 F.2d at 1221 (T. Clark, J.,
dissenting).
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scope of EEOC exhaustion, because doing so would thwart the
administrative process and peremptorily substitute litigation for
conciliation.” McClain, 519 F.3d at 273.
As the majority does not dispute, our plaintiffs have not exhausted.
Nor has United forfeited or waived the requirement; it has pressed the
exhaustion issue at every turn. Failure to comply with an exhaustion require-
ment precludes plaintiffs from showing that they are likely to succeed on the
merits.46 We regularly apply that principle to Title VII cases. See, e.g., Stroy,
896 F.3d at 698 & n.2 (Elrod, J.).47 Because our plaintiffs have not exhausted,
they cannot succeed on the merits. Game, set, match.
The majority answers that deficiency by placing even more weight on
Drew, that flimsiest of rods. But for the same reason that the majority cannot
rely on Drew for a private right to a preliminary injunction, it cannot rely on
Drew now: The Supreme Court has made clear that we cannot devise reme-
dies or exceptions that a statute’s text does not contain. But there’s a second,
even more fundamental problem with the majority’s use of Drew: that case
does not say what the majority wants it to.
1.
If the majority reads Drew correctly, then Drew is not good law.
That’s not only because this majority’s choice to fashion an equitable remedy
contradicts Sandoval, but also because its failure to enforce Title VII’s
exhaustion requirement contradicts Ross v. Blake, 578 U.S. 632 (2016).
Ross reversed the Fourth Circuit, which had invented a “special
46
See, e.g., Murphy v. Collier, 942 F.3d 704, 713–14 (5th Cir. 2019) (Elrod, J.,
dissenting).
47
See also Torres v. Cnty. of Webb, 150 F. App’x 286, 293 (5th Cir. 2005).
58
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circumstances” exception to the exhaustion requirement of the Prison Liti-
gation Reform Act. Id. at 635. But Ross did not confine its holding to that
statute: It endorsed the sensible proposition that “mandatory exhaustion
statutes . . . establish mandatory exhaustion regimes, foreclosing judicial dis-
cretion.” Id. at 639. We have repeatedly cited the case to proscribe judge-
made exceptions to mandatory exhaustion regimes other than that of the
PLRA.48 And Title VII’s exhaustion requirement is mandatory. See Fort
Bend Cnty. v. Davis, 139 S. Ct. 1843, 1852 (2019).
As with Sandoval, the majority tries to save its version of Drew by
cabining Ross. The majority does not pretend that Ross applies only to the
PLRA, but the notion it advances is no more persuasive: Ross does not apply
to preliminary injunctions because “[t]ime is of the essence” in granting
them. Ante at 12. The majority cites no authority for that convenient
distinction.
Ross says we cannot impose “unwritten limits” on statutory exhaus-
tion requirements. 578 U.S. at 639. Period. Ross offers no basis for distin-
guishing damages from injunctive relief. And sure enough, this court applies
Ross to require exhaustion before plaintiffs may seek injunctions.49 If Drew
ever allowed this court to forgive noncompliance with a mandatory exhaus-
48
See, e.g., United States v. Pedroza-Rocha, 933 F.3d 490, 498 (5th Cir. 2019) (per
curiam); cf. Hoyt v. Lane Constr. Corp., 927 F.3d 287, 294 (5th Cir. 2019) (Oldham, J.)
(citing Ross and refusing to apply judge-made exception to limits on removal jurisdiction).
49
See, e.g., Valentine v. Collier, 956 F.3d 797, 804–05 (5th Cir. 2020) (per curiam)
(staying an injunction because the plaintiffs failed to exhaust, among other reasons);
McMillan v. Dir., Tex. Dep’t of Crim. Justice-Corr. Insts. Div., 540 F. App’x 358, 359 (5th
Cir. 2013) (per curiam) (“Requests for injunctive relief are not exempt from the exhaustion
requirement, and failure to completely exhaust prior to filing suit cannot be excused.”
(citing Gonzalez v. Seal, 702 F.3d 785, 788 (5th Cir. 2012) (per curiam))); Muhammad v.
Wiles, 841 F. App’x 681, 685–86 (5th Cir. 2021) (per curiam) (same); see also Valentine v.
Collier, 993 F.3d 270, 294 (5th Cir. 2021) (Oldham, J., concurring in the judgment).
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tion requirement, it no longer does.
2.
But the majority faces a more fundamental problem than the Supreme
Court’s intervention: Drew itself does not address Title VII’s exhaustion
requirement, and Drew’s reasoning does not support a “time is of the
essence” exception to that requirement.
The plaintiff in Drew filed her initial complaint before exhausting ad-
ministrative remedies. See Drew, 480 F.2d at 71. But she had exhausted,
receiving her “right to sue letter,” by the time she filed the complaint that
we considered on appeal. Id. Thus, Drew never presented the exhaustion
issue and could not have done so beyond dictum. That’s why our Title VII
decisions describe exhaustion as an absolute condition to suit, unaware of the
qualification that the majority has created.50
But even if Drew were relevant to exhaustion, it would still say nothing
justifying a “time is of the essence” exception to Ross. By the time we
decided Drew, the EEOC had had the plaintiff reinstated at her job. See Drew,
480 F.2d at 72. That would have mooted the case, but for the fact that the
trial court had awarded costs to the defendant. So we did not grant a
preliminary injunction; doing so was unnecessary to preserve the status quo
ante. See id. at 76. That result leaves the majority with no basis to say that
Drew’s holding on exhaustion, phantasmal though it is, survives Ross.
3.
Even after it ignores statutory text, reimagines a defunct precedent,
and plows that altered precedent through Supreme Court commands, the
majority produces a rule that does not help the plaintiffs.
50
See, e.g., Ernst, 1 F.4th at 337; McClain, 519 F.3d at 273; Stroy, 896 F.3d at 698.
60
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The majority says that Drew exempts plaintiffs from the exhaustion
requirement when time is of the essence to maintain the status quo. But our
plaintiffs sued to alter an existing policy, and they did so by theorizing an
injury that no longer exists. Since this case was filed, three of the plaintiffs
have received other accommodations, and two (Sambrano and Kincannon)
are on unpaid leave. All have made or avoided the “impossible choice.”
Although Sambrano and Kincannon continue to endure lost pay and
benefits, that’s the kind of pedestrian Title VII injury that the majority con-
cedes is reparable. The majority’s reading of Drew suggests that our plaintiffs
could have sought a preliminary injunction, but Drew also suggests that grant-
ing an injunction now, when time is no longer of the essence, would be im-
proper. To enjoin United’s policy now would be an unprecedented intrusion
into the management of a private business, yet it would not prevent the injury
that the plaintiffs feared they would suffer.
The exhaustion requirement is just one more casualty of the
majority’s orgy of jurisprudential violence. If anyone takes the majority
seriously, the number of Title VII cases will explode; unexhausted claims will
flood the courts; and organizations large and small will grind to a halt—all
results contrary to the statute’s text, purpose, and established interpretation.
B.
But suppose that’s all wrong, too. Let’s imagine that Drew does excuse
the plaintiffs’ failure to exhaust, and let’s assume that every sentence of Drew
still binds this court. Even then, Drew does not excuse exhaustion unless the
plaintiffs show that their substantive claims are likely to succeed. Drew,
480 F.2d at 72. The plaintiffs have not shown that.
Sambrano and Kincannon are the only plaintiffs with standing. They
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sought only religious accommodations, so they have two claims. 51 The first
is that United’s accommodation of unpaid leave amounted to religious dis-
crimination under Title VII. The second is that United retaliated against
them for seeking religious accommodations. Neither claim can succeed.
1.
Title VII bars an employer from discriminating against an employee
because of her religion. 42 U.S.C. § 2000e-2(a)(1). But to avoid liability, an
employer need only show that it reasonably accommodated the claimant or
that such accommodation would impose an “undue hardship” on the em-
ployer’s business. 42 U.S.C. § 2000e(j).
Unpaid leave may be a reasonable accommodation for Sambrano and
Kincannon; indeed, our cases typically describe unpaid leave as a benefit.52
51
Sambrano and Kincannon also say that United discriminated and retaliated
against them because of their disabilities. I won’t belabor those claims; the record shows
they will fail. The plaintiffs must show that United knew of their disabilities and the result-
ing limitations. See Jennings, 11 F.4th at 343. Yet neither Sambrano nor Kincannon re-
quested a medical accommodation, and Kincannon never alleged a disability or any desire
for a medical accommodation. See Jenkins v. Cleco Power, LLC, 487 F.3d 309, 315 (5th
Cir. 2007) (“It is the plaintiff’s burden to request reasonable accommodations.”).
Though Sambrano says he wanted a medical accommodation, his claimed
disability—his past coronavirus infection—is far from meeting the ADA’s “demanding”
definition of disability. Waldrip v. Gen. Elec. Co., 325 F.3d 652, 654 (5th Cir. 2003) (citation
omitted); see also id. at 656–57 (holding that “no reasonable jury could conclude” that an
employee’s chronic pancreatitis, which caused him to miss work regularly, was an ADA
disability); 42 U.S.C. § 12102(1) (“The term ‘disability’ means . . . a physical or mental
impairment that substantially limits one or more major life activities of [the] individual.”).
And even if the plaintiffs could surmount those hurdles, United would have a strong
“undue hardship” defense. See Riel v. Elec. Data Sys. Corp., 99 F.3d 678, 683 (5th
Cir. 1996).
52
See, e.g., Mota v. Univ. of Tex. Hous. Health Sci. Ctr., 261 F.3d 512, 522 (5th
Cir. 2001); cf. Moss v. Harris Cnty. Constable Precinct One, 851 F.3d 413, 418 (5th Cir. 2017)
(“Time off, whether paid or unpaid, can be a reasonable accommodation, but an employer
is not required to provide a disabled employee with indefinite leave.” (citation omitted)).
62
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United also invited its flight-crew members to apply for non-customer-facing
roles, with the possibility of returning to their prior responsibilities when the
pandemic subsides. Allowing an employee “to find another position” that
may lessen “conflict[ ] with her religious beliefs” is a reasonable accommo-
dation, Bruff v. N. Miss. Health Servs., Inc., 244 F.3d 495, 501–02 (5th
Cir. 2001), even when those positions would inconvenience the employee or
substantially reduce her income, see id. at 502 n.23; see also Horvath v. City of
Leander, 946 F.3d 787, 792 (5th Cir. 2020).
But none of that matters. Even if unpaid leave is not a reasonable
accommodation, the plaintiffs have not shown that United can accommodate
them without undue hardship, so they cannot succeed on the merits.
Undue hardship exists where the employer must bear any more than
a trivial cost to accommodate the Title VII claimant.53 Even the “mere possi-
bility of an adverse impact on co-workers” is an undue hardship. Bruff,
244 F.3d at 501 n.14 (citation omitted). It’s an undue hardship to require an
employer to impose a shift change, Hardison, 432 U.S. at 84–85, or the
chance of “extra work,” Tagore v. United States, 735 F.3d 324, 330 (5th
Cir. 2013), on a claimant’s coworkers. Undue hardship also exists wherever
an employer would bear economic costs, logistical challenges, or
inconvenience to accommodate an employee’s beliefs.54
53
See, e.g., Antoine v. First Student, Inc., 713 F.3d 824, 839 (5th Cir. 2013) (“Undue
hardship exists when an employer is required to bear more than a de minimis cost.”).
54
See Bruff, 244 F.3d at 501 (requiring counselors “to assume a disproportionate
workload” or to adjust their travel schedules is “an undue hardship as a matter of law”);
Howard v. Haverty Furniture Cos., 615 F.2d 203, 206 (5th Cir. 1980) (finding undue
hardship despite “[t]he fact that Haverty incurred no direct money cost from plaintiff’s
absence,” because Haverty believed in good faith that the plaintiff’s absence would disrupt
warehouse operations); Tagore, 735 F.3d at 330 (finding undue hardship because allowing
the plaintiff to bring her ceremonial knife to work would burden security personnel with a
63
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United has satisfied that low bar. It offered unrebutted testimony that
masking is hazardous in the cockpit and that requiring pilots and flight atten-
dants to test will reduce the time that they can spend in the air. United also
explained that its flight-crew members travel in close quarters for days at a
time, increasing the risk of disease transmission and reducing the efficacy and
enforceability of alternative accommodations. Vaccinated employees also
are less likely to get sick or to transmit the coronavirus to other employees.
That means fewer delays, cancellations, and logistical puzzles—not to
mention lower health risks for United employees. If imposing a shift change
is an undue hardship, see Hardison, 432 U.S. at 84, imposing a greater risk of
disease must be one, too.
Perhaps the plaintiffs can rebut that evidence. But so far, they have
not even tried. Their initial brief mentions undue hardship only once, to
assert, without explanation, that “United has not seriously alleged or
shown” it. United’s brief belies that claim; it exhaustively explains why it
did not provide alternative accommodations to flight-crew members. Yet the
plaintiffs’ reply and the majority ignore that evidence, instead casting asper-
sions that cannot survive even a casual encounter with the facts. Three of
those innuendos merit scrutiny.
First, the plaintiffs complain, and the majority parrots, that United
does not “require its employees based in other countries to get vaccinated—
even though those employees work with and come into contact with U.S.-
based crews.” Ante at 3. By that, they imply that United’s policy is rank
hypocrisy or, worse, a pretext for religious discrimination against its domestic
“time-consuming” and “impractical” inquiry into the blade’s dangers, and because
permitting the plaintiff to work from home “could require coworkers . . . to perform extra
work”).
64
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employees.55 But United rebutted that precise point in its brief before this
court. “United has been limited by foreign laws in its ability to require
(rather than incentivize) vaccination for its international employees,” United
wrote, citing witness testimony. The plaintiffs acknowledged that testimony
and did not rebut it; the majority ignores it. In any event, forcing United to
violate foreign law or to rearrange its crews to avoid all contact between
foreign and U.S.-based employees would impose obvious hardships. See
Hardison, 432 U.S. at 84.
Second, the plaintiffs and the majority fault United for allowing pilots
from other airlines to ride in the cockpit jump seat. Ante at 3. They again
imply that the policy reflects United’s disdain for its religious employees.
But they again omit contrary facts and ignore the obvious.
Jump seaters are one-off travelers—pilots or flight attendants who
need to get to the plane’s destination to start their own trips. Like regular
passengers, they don’t mix with the flight crew for days at a time. Their only
exposure to the crew is on the flight deck, and they must mask there unless
the captain commands otherwise.56
Now to the obvious point: Pilots from other airlines are not United’s
employees. United cannot require them to vaccinate. And because jump seat
55
The insinuation of pretext is almost self-refuting. If United were bent on quash-
ing its employees’ religious rights, as the majority believes, one would think that United
would press that policy everywhere, not just within our borders.
56
The captain may call on a jump seater during emergencies. See, e.g., Alan Levin
& Harry Suhartono, Pilot Who Hitched a Ride Saved Lion Air 737 Day Before Deadly Crash,
Bloomberg (Mar. 19, 2019), https://www.bloomberg.com/news/articles/2019-03-19/
how-an-extra-man-in-cockpit-saved-a-737-max-that-later-crashed (“As the Lion Air crew
fought to control their diving Boeing Co. 737 Max 8, they got help from an unexpected
source: an off-duty pilot who happened to be riding in the cockpit. That extra pilot, who
was seated in the cockpit jumpseat, correctly diagnosed the problem and told the crew how
to disable a malfunctioning flight-control system and save the plane.”).
65
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rights arise from contracts among airlines, barring other pilots from United’s
jump seats would threaten United’s ability to transport its own crews.
Third, the majority—like the plaintiffs—grumbles that United does
not require passengers to vaccinate. Ante at 3. The implication is that United
does not care whether its planes are safe; safety is just a pretext for United’s
illegal discrimination against religious employees.
That is absurd. A restaurant’s concern for food safety is not
pretextual because only cooks, and not customers, must wear hairnets.
Likewise, passengers and flight crews are not similarly situated.
Passengers pose less danger to flight-crew members than those em-
ployees pose to each other. The plaintiffs do not contest that passengers
must mask during flight and do not follow the flight crew throughout their
days-long trips. The plaintiffs even stress that the coronavirus does not
transmit easily on planes. But that fact, which assumes “diligent mask
wearing . . . at all times during the flight,” validates United’s concern about
employees’ close contacts in the cockpit and outside the aircraft. In those
places, United has shown, other measures to mitigate disease are costly,
unsafe, or unenforceable. Neither the plaintiffs nor the majority confronts
those concerns.
Our plaintiffs point to nothing that could defeat United’s defense of
undue hardship. That defect by itself precludes preliminary relief.
2.
Title VII prohibits employers from retaliating against employees for
“oppos[ing] any [unlawful employment] practice.” 42 U.S.C. § 2000e-3(a).
To prove retaliation, a plaintiff must show that he opposed such a practice,
such as by filing a charge with the EEOC, and that his employer took an
adverse employment action because of that opposition. McCoy v. City of
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Shreveport, 492 F.3d 551, 556–57 (5th Cir. 2007) (per curiam).57 The plaintiff
will lose if his employer can identify “a legitimate, nondiscriminatory . . .
reason for its employment action.” Id. at 557.
These plaintiffs cannot show retaliation. United’s offer of unpaid
leave preceded the plaintiffs’ objections to that offer, so those objections
could not have “caused” that offer. See id. (requiring “a causal connection
. . . between the protected activity and the adverse employment action”).
But even if one rejected the laws of time and causality, United placed the
plaintiffs on unpaid leave not because they opposed any unlawful
employment practice, but because they declined the vaccine. That is a
nondiscriminatory reason for United’s policy.
* * * * *
If Drew applies just as the majority claims, our plaintiffs must show
that they are likely to succeed on the merits before we may excuse their failure
to exhaust. As the movants for extraordinary relief, the plaintiffs must carry
a heavy burden of persuasion. See Black Fire Fighters Ass’n of Dall. v. City of
Dall., 905 F.2d 63, 65 (5th Cir. 1990). They have not done that. They do not
counter United’s undue-hardship defense, and their retaliation claim is
incoherent. None of that means that the plaintiffs cannot win their case after
a trial, but it dictates that they cannot receive preliminary relief.
V.
But suppose that’s all wrong. Let’s pretend that the plaintiffs have
overcome every hurdle so far: They have shown that they may seek an
57
See also Ackel v. Nat’l Commc’ns, Inc., 339 F.3d 376, 385 (5th Cir. 2003) (“Pro-
tected activity is defined as opposition to any practice rendered unlawful by Title VII,
including making a charge, testifying, assisting, or participating in any investigation, pro-
ceeding, or hearing under Title VII.” (citation omitted)).
67
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injunction, despite Sandoval and despite Title VII’s text and structure. They
have established irreparable harm because United put them to an
“impossible choice” between full monetary damages and the coronavirus
vaccine. And they have shown a likelihood of success on the merits, even
though they did not exhaust, as the statute requires, and have not countered
United’s defenses.
Even so, we should affirm; the plaintiffs cannot overcome the re-
maining factors required to obtain a preliminary injunction. An injunction
would hurt United far more than it will help the plaintiffs. It also would
disserve the public interest. We should not rush to stop private businesses
from shielding their employees and customers during a global pandemic.
A.
Preliminary relief may not issue if it would hurt the defendant more
than it would help the plaintiff. Def. Distributed, 838 F.3d at 459. So it is
here. Even if we assume that the plaintiffs suffered irreparable harm from
the choice between vaccination and full monetary damages, compensation
after trial can redress nearly all their claimed harms. That is not true for
United. An injunction will force United to bear unrecoverable costs that far
exceed the plaintiffs’ irreparable harm. The equities disfavor injunctive
relief.
Insofar as these plaintiffs suffer irreparable harm, that harm must be
small. It is not lost wages or benefits; nor is it compensation for emotional
distress, mental anguish, inconvenience, or the like. Money can measure and
compensate all those harms if the plaintiffs win at trial. Nor can the harm be
that they must violate their religious beliefs or their bodily autonomy; the
plaintiffs face unpaid leave only if they adhere to their beliefs and decline the
vaccine.
Under the majority’s theory, the only harm that an injunction can fix
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arises from whatever part of the “impossible choice” injury that would have
accrued from the date the injunction issues. That must be so because a pro-
spective order cannot erase past injuries. Nothing we say can change the fact
that the plaintiffs declined the vaccine since United announced its policy.
I cannot say which portion of that “injury” arises from the plaintiffs’ first
refusal, and which from all those that followed.
Is the plaintiffs’ decisional injury subject to the law of diminishing
returns? Or is each instant where a plaintiff could choose to vaccinate equally
soul-searing? In either case, an injunction can redress only a small slice of the
plaintiffs’ claimed injury.
On the other hand, an injunction will force United to choose whether
to maintain its vaccination policy. That choice will inflict significant and un-
recoverable costs.
If United persists with its policy, it must place unvaccinated flight-
crew members on paid leave. That will cost millions of dollars per month. 58
Those funds are unrecoverable; nothing in the record suggests that the plain-
tiffs or the putative class can repay those losses if United wins and the in-
junction is dissolved.59
58
William Limacher, United’s Vice President for Human Resources, testified that
paid leave for just unvaccinated pilots—not flight attendants—would cost the airline
$1.4 million every two weeks.
59
Before an injunction may issue, a movant for preliminary relief must “give[ ]
security” to redress the costs of a wrongful injunction. Fed. R. Civ. P. 65(c). But the
movant need only post “an amount that the [district] court considers proper.” Id. That
last provision vests vast discretion in the trial court; indeed, we have said that the trial judge
“may elect to require no security at all.” Corrigan Dispatch Co. v. Casa Guzman, S.A., 569
F.2d 300, 303 (5th Cir. 1978) (per curiam) (citations omitted); see also Kaepa, Inc. v. Achilles
Corp., 76 F.3d 624, 628 (5th Cir. 1996) (reaffirming Corrigan Dispatch).
The district court required the plaintiffs to post a bond of only a few thousand dol-
69
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But if United reverses its policy and allows unvaccinated employees
to return to work, it must accept greater risks to its employees and its
operations. United required vaccination because it would reduce sickness
and death among its employees. Even the plaintiffs’ experts acknowledge
that vaccination reduces the severity and transmission of COVID-19.60
Reduced rates of vaccination will cause more sickness and death
among employees, disrupting United’s operations. And those disruptions
will occur even without a surge of illness. Before United’s vaccination policy
took effect, vaccination status caused conflicts in the cockpit. Those
conflicts often ended with one pilot’s refusal to fly with the other, which
forced United to scramble to find other pilots or to delay or cancel flights.
Those problems will recur if United reinstates its unvaccinated employees.
The plaintiffs reply that the balance of harms favors them because
United is violating Title VII. Even if that notion were true, it lacks legal sig-
nificance. We have “expressly reject[ed]” that we must presume that the
balance of harms favors the movant when the movant shows he is likely to
prevail in the suit. Def. Distributed, 838 F.3d at 457 (citation omitted).
lars before it issued a temporary restraining order against United. That choice was within
the court’s discretion, but so small a bond cannot begin to redress the harm that United
will suffer if an injunction is granted.
60
The plaintiffs’ experts do not contest the benefits of vaccination. Instead, they
argue that United should exempt, from its vaccine requirement, employees who have re-
covered from a COVID-19 infection. United could accommodate such employees, the
theory goes, with regular antibody testing to confirm their immunity.
But even if we assume that accommodation is feasible (and United has made a good
case that it’s not), there’s a problem: Antibody tests would violate the plaintiffs’ religious
beliefs. The plaintiffs object that a fetal stem-cell line was used to develop the coronavirus
vaccines, but antibody tests were developed using the same stem-cell line. When con-
fronted with that fact, both Sambrano and Kincannon admitted that they would not accept
antibody testing as an accommodation.
70
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The plaintiffs then reheat their innuendos. United cannot satisfy the
balance of harms, the plaintiffs say, because it does not require foreign em-
ployees to be vaccinated, because it allows pilots from other airlines to ride in
the jump seat, and so on. I won’t plow that barren soil again. Those claims
deserve no weight.
The balance of harms disfavors an injunction. The plaintiffs have not
shown otherwise.
B.
An injunction would disserve the public interest. We must “pay par-
ticular regard for the public consequences in employing the extraordinary
remedy of injunction.” Winter, 555 U.S. at 24 (cleaned up). The majority
does not do that. Instead, it all but invites the district judge to obliterate a
vaccine requirement designed to protect United’s employees and customers
during a global pandemic. Doing that at this early stage would be foolish.
We need not decide the wisdom or lawfulness of United’s policy to
know that making decisions during a crisis is not easy. Businesses large and
small have carried that burden since this pandemic began. United is no dif-
ferent. It is a multinational company that employs tens of thousands of per-
sons around the world: pilots, flight attendants, customer service agents, gate
employees, ramp operators, ticket sellers, and countless others. When the
pandemic struck, passengers vanished, and United’s revenue evaporated.
United fought for survival. It lost $7 billion in 2020.61 It also lost many of its
61
Kate Duffy, United Airlines Lost $7 Billion in 2020, and Burned Through
$33 Million Per Day in the Fourth Quarter. It Says 2021 Will Be a ‘Transition’ Year That
Prepares It For Recovery., Bus. Insider (Jan. 21, 2021),
https://www.businessinsider.com/united-airlines-financial-results-losses-covid-
pandemic-scott-kirby-2021-1.
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employees to the coronavirus.
United responded by requiring its employees to vaccinate. Employees
who refused were fired, but those with genuine medical and religious object-
ions received accommodations. United tailored those accommodations to
the risk that it perceived to each subset of employees. That’s why non-
customer-facing employees received more generous accommodations—such
as remote work or masking-and-testing—than did flight-crew members,
whom United placed on unpaid leave.
None of that suggests that United aims to eradicate its employees’
religious convictions. The record instead shows a company wrestling with
an evolving crisis and choosing an uncertain path forward. If such a choice
calls for injunctive relief, it’s hard to imagine which choices during this time
would not. Granting this injunction would announce to all similarly situated
entities that their decisions will be summarily second-guessed. We should
not chill life-saving answers to this pandemic.
The majority, if acting as CEO, would have made a different choice
for United. That’s why the majority erases the usual requisites of
preliminary relief, trusting the district court to enact the corporate policy it
prefers. Though such aggressive intrusion could prevent some harms, there
is far greater danger from inviting unelected judges to dictate, with so little
proof and at this early stage, what measures a private business must take to
confront an evolving pandemic.
The diffuse experimentation of states, localities, and firms has served
the public interest throughout this crisis. Insinuating ourselves into the
boardroom will forfeit those benefits.62 We “should not intervene to
62
Cf. F.A. Hayek, The Constitution of Liberty 83 (Ronald Hamowy,
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establish the basis for future intervention that would be so intrusive and
unworkable.” O’Shea, 414 U.S. at 500.
VI.
The majority chose not to publish this opinion. That is curious
indeed—or maybe not. Under our court’s rule governing publication,
“opinions that may in any way interest persons other than the parties to a
case should be published.” 5th Cir. R. 47.5.1. Unpublishing this case
conflicts with nearly every factor highlighted in that rule.
Under Rule 47.5.1, “an opinion is published if it”
• “Establishes a new rule of law . . . .”63 Check. Ever heard of
“ongoing coercion” before? Me neither.
• “[A]lters[ ] or modifies an existing rule of law . . . .”64 Quin-
tuple check. We now have a Drew-sized exception to Sando-
val’s prohibition on judicially created remedies.65 The majority
extends Drew to excuse the nonexhaustion of EEOC reme-
dies,66 while cutting back Ross to make room.67 Opulent Life
now means that violating any statute related to a constitutional
ed., Routledge 2020) (orig. 1960) (“We shall never get the benefits of freedom, never
obtain those unforeseeable new developments for which it provides the opportunity, if it is
not also granted where the uses made of it by some do not seem desirable . . . . Our faith in
freedom does not rest on the foreseeable results in particular circumstances but on the
belief that it will, on balance, release more forces for the good than for the bad.”).
63
5th Cir. R. 47.5.1(a).
64
Id.65
See supra Part II.
66
See supra Part IV.A.1.
67
See supra Part IV.A.2.
73
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subject creates an irreparable injury.68 And Title VII plaintiffs
who plead ongoing coercion need not show that irreparable
injury is likely or even probable; now, we must presume irrep-
arable harm.69
• “[C]alls attention to an existing rule of law that appears to have
been generally overlooked.”70 Check. This majority is the first
panel of our court to dust off Drew in over forty years.71
• “Applies an established rule of law to facts significantly differ-
ent from those in previous published opinions applying the
rule.”72 Check. This is the first time we have applied Drew to
a case involving religious accommodations.
• “Explains, criticizes, or reviews the history of existing deci-
sional or enacted law.”73 Check. To save Drew, the majority
explains away Sandoval, Ross, and Drew’s own facts.
• “Creates or resolves a conflict of authority either within the
circuit or between this circuit and another.” 74 Triple check.
Title VII now regulates harms that are “antecedent to, inde-
pendent from, and exogenous to any adverse employment
action”75—never mind our decisions recognizing that Title VII
68
See supra Part III.C.2.b.
69
See supra Part III.C.1.
70
5th Cir. R. 47.5.1(a).
71
See Middleton-Keirn v. Stone, 655 F.2d 609, 611 (5th Cir. Unit B Sept. 1981).
72
5th Cir. R. 47.5.1(b).
73
5th Cir. R. 47.5.1(c).
74
5th Cir. R. 47.5.1(d).
75
Ante at 16.
74
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applies only to adverse employment actions.76 Forget about
White, too; Title VII plaintiffs no longer must prove irreparable
harm.77 And despite our many cases holding that Title VII’s
exhaustion requirement is absolute, the majority ignores that
requirement for this class of plaintiffs.78
• “Concerns or discusses a factual or legal issue of significant
public interest.”79 Check. More people listened to the oral
argument here than to any other in this court’s history. That’s
no surprise. The national media has closely covered United’s
vaccination policy and the plaintiffs’ challenge to it. 80 And if
you didn’t know that vaccine mandates are controversial in this
76
See supra Part III.B.2.a.
77
See supra Part III.B.2.a–b.
78
See supra Part IV.A.
79
5th Cir. R. 47.5.1(e).
80
See, e.g., David K. Li, United CEO Says Vaccine Mandate Appears to Have Ended
Weekly Deaths of Employees from Covid, NBC News (Jan. 11, 2022), https://www.
nbcnews.com/news/us-news/united-ceo-says-vaccine-mandate-appears-ended-weekly-
deaths-employees-rcna11760; Sabrina Canfield, Attorneys Spar over United Airlines Vaccine
Mandate at Fifth Circuit, Courthouse News Serv. (Jan. 4, 2022), https://www.
courthousenews.com/attorneys-spar-over-united-airlines-vaccine-mandate-at-fifth-cir
cuit; Katherine Hamilton, Exclusive—United Airlines Outsources Work to Potentially
Unvaccinated London Flight Attendants, Breitbart (Jan 2, 2022), https://www.breit
bart.com/politics/2022/01/02/exclusive-united-airlines-outsources-work-potentially-un
vaccinated-london-flight-attendants; David Shepardson, U.S. Appeals Court Declines to
Block United Airlines Vaccine Mandate, Reuters (Dec. 14, 2021); https://www.
reuters.com/business/aerospace-defense/us-appeals-court-declines-block-united-
airlines-vaccine-mandate-2021-12-14.
75
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country81 and in the courts,82 you haven’t been paying
attention.
The rule concludes that “[a]n opinion may also be published if it is
accompanied by a concurring or dissenting opinion” or if it “reverses the
decision below or affirms it upon different grounds. 83 Check and check.
All told, the majority has disregarded every factor in Rule 47.5.1 but
one: The majority’s opinion has not been “rendered in a case that has been
reviewed previously and its merits addressed by an opinion of the United
States Supreme Court”—at least, not yet.84 5th Cir. R. 47.5.1(f). But
that should be small comfort: In life, as in baseball, one out of ten falls far
short of even the “Mendoza line.”85
All that leads one to wonder: if the judges in the majority truly believe
that their decision is sound, why didn’t they publish it?
* * * * *
81
See, e.g., Alexa Corse, Protesters March in Washington Against Covid-19 Vaccine
Mandates, Wall St. J. (Jan. 23, 2022), https://www.wsj.com/articles/protesters-
march-in-d-c-against-covid-19-vaccine-mandates-11642963718; Katie Rogers & Sheryl Gay
Stolberg, Biden Mandates Vaccines for Workers, Saying, “Our Patience Is Wearing Thin,”
N.Y. Times (Nov. 12, 2021), https://www.nytimes.com/2021/09/09/us/politics/
biden-mandates-vaccines.html.
82
See, e.g., Biden v. Missouri, 142 S. Ct. 647 (2022) (per curiam); NFIB v. Dep’t of
Labor, 142 S. Ct. 661 (2022); Feds for Med. Freedom v. Biden, No. 21-cv-356, 2022 WL
188329 (S.D. Tex. Jan. 21, 2022).
83
5th Cir. R. 47.5.1.
84
“[E]ven if that is true now, it does not mean it will always be so.” Ante at 19
n.14.
85
“The ‘Mendoza Line’ is a .200 batting average.” Mendoza Line, Major
League Baseball, www.mlb.com/glossary/idioms/mendoza-line (last visited Feb. 2,
2022).
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If I ever wrote an opinion authorizing preliminary injunctive relief for
plaintiffs without a cause of action, 86 without a likelihood of success on the
merits (for two reasons),87 and devoid of irreparable injury,88 despite the text,
policy, and history of the relevant statute, despite the balance of equities 89
and the public interest,90 and despite decades of contrary precedent from this
circuit and the Supreme Court,91 all while inventing and distorting facts to
suit my incoherent reasoning,92 “I would hide my head in a bag.”93 Perhaps
the majority agrees. Why else shrink behind an unsigned and unpublished
opinion?
The greatest danger presented by the majority’s opinion is not the dire
consequences of its substantive rulings for employment law, religious expres-
sion, and pandemic response. Instead, the bigger threat is the use of a new
decisionmaking process that reaches a result which—while unavailable under
established law—will prove popular in some quarters.
I call this the “one and done” method of decisionmaking. Two judges
randomly selected for a panel decide that—for whatever reason—a particular
result is correct but can be achieved only by divorcing the opinion from the
common-law tradition, by evading precedent, and by obscuring the path in
the shroud of an unpublished per curiam opinion. The obvious result is to
86
See supra Parts II and III.B.2.a.
87
See supra Part IV.
88
See supra Part III.
89
See supra Part V.A.
90
See supra Part V.B.
91
Supra passim.
92
Supra passim.
93
Obergefell v. Hodges, 576 U.S. 644, 719 n.22 (2015) (Scalia, J., dissenting).
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foster whatever happens to be the “Blue Plate Special” cause on a given day.
“Move along, folks. Nothing to see here. We’re doing no damage to
the law; this decision is not precedent.” Justices of the peace do that every
day, hearing the facts and dispensing shade-tree “justice” without need for
consistency or predictability because they aren’t courts of record (at least not
in Texas). The announced result applies only to the two parties; the bailiff
then calls “Next case!”
The majority implies that its decision is for this case only.94 It assures
that “[t]his case is rather unique among Title VII cases,” ante at 13, that
“[v]ery few employment suits involve such harms,” id. at 15, that “such
independent harms are rare,” id., that “plaintiffs can . . . rarely[ ] establish
[such] irreparable harm,” id. at 16, that “this is one of the ‘extraordinary
cases,’” id. at 21, and that “such cases are extraordinary and rare,” id. at
21 n.16. Hence, the scenario goes, today’s decision is “one and done.”95
The rub is that by its ruling, this panel majority gives leave for any
loose-cannon district judge96 or future Fifth Circuit majority of two to decide
that a cause is so compelling that “the law be damned, we will find a way.”
What is the hapless trial judge or conscientious advocate to do in the wake of
94
In some quarters, it may seem innocent enough to accept the majority’s
methodology (i.e., announcing major rulings in an unpublished opinion) for this important
case only. But we shouldn’t want the Fifth Circuit to get hooked on one-off
decisionmaking.
95
The “unpublished” device is a clever way of avoiding, or at least trying to avoid,
en banc review. We have some judges who are disinclined to grant en banc rehearings
except in the most extreme situations. The fact that an opinion is unpublished furnishes
just another reason to vote to deny en banc scrutiny. But by today’s ruling, the Good Ship
Fifth Circuit is afire. We need all hands on deck.
96
If there are no such district judges in this circuit today, someday there could be
jurists who are delighted that Supreme Court and Fifth Circuit precedent of which they
aren’t fond need not be followed.
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such a methodology?
In one way, it is fortunate that this case is not precedential. If it were,
it could spawn countless misdirections in the law of Title VII and beyond.
But published or not, the opinion is grave error: The majority, with what I’m
sure are the most wholesome intentions, junks facts, text, history, and pre-
cedent, resulting in a one-off change in the law that alters the result for these
parties.
One might suspect that my esteemed colleagues hope that no one will
take their unpublished opinion as meaningful, except to the extent that it
affects the immediate parties to this interlocutory appeal. 97 But as I have
shown, the consequences for our jurisprudence and for our court’s long-
standing mode of decisionmaking are far greater. “[Textualism] for me, but
not for thee, is not [textualism] at all.” Cole v. Carson, 935 F.3d 444, 479 (5th
Cir. 2019) (en banc) (Ho and Oldham, JJ., dissenting).98
97
It’s easy to tell where this panel majority—given the opportunity—would go on
the merits. “United’s bizarre inquisition into the sincerity of its employees’ beliefs is
somewhat at odds with our usual approach of taking parties at their word regarding their
own religious convictions.” Ante at 3 n.2. “Plaintiffs credibly contend that United sent
postcards rather than letters [to employees’ homes] in order to broadcast employees’
unvaccinated status to family members and enlist those family members in coaxing
employees to receive the vaccine.” Id. at 4. “United has presented plaintiffs with two
options: violate their religious convictions or lose all pay and benefits indefinitely. That is
an impossible choice for plaintiffs who want to remain faithful but must put food on the
table. In other words, United is actively coercing employees to abandon their convictions.”
Id. at 19 (footnote omitted).
98
This is no personal criticism of my two conscientious co-panelists, who serve
with integrity, dedication, and skill. It’s a main reason we have panels of three, allowing
for honest differences on matters large and small.
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I respectfully but sternly dissent.99
99
There’s a much easier, straightforward way to resolve this appeal of the denial
of a preliminary injunction. Like the district court, the motions panel majority got it exactly
right. The motions panel did so in one comprehensive sentence: “IT IS ORDERED that
Appellants’ opposed motion for an injunction pending appeal is DENIED for the reasons
stated in the district court’s Opinion & Order of November 8, 2021 and Orders of
November 19, 2021 and November 23, 2021.” Sambrano, 19 F.4th at 839 (per curiam)
(citation omitted). This merits panel could do the same, affirming the denial of injunctive
relief and returning this matter to the district court for a badly needed resolution on the
merits.
80