Anderson v. United Airlines, Inc.

• Decision Date: 30 December 2021
• Docket Number: Case No. 3:21-cv-1050-TJC-LLL
• Citation: 577 F.Supp.3d 1324
• Parties: Thomas ANDERSON, et al., on behalf of themselves and others similarly situated, Plaintiffs, v. UNITED AIRLINES, INC., a Delaware Corporation, Defendant.
• Court: U.S. District Court — Middle District of Florida

577 F.Supp.3d 1324

Thomas ANDERSON, et al., on behalf of themselves and others similarly situated, Plaintiffs,

v.UNITED AIRLINES, INC., a Delaware Corporation, Defendant.

Case No. 3:21-cv-1050-TJC-LLL

United States District Court, M.D. Florida, Jacksonville Division.

Signed December 30, 2021

Kenneth Wayne Ferguson, Ferguson Law PA, Fort Lauderdale, FL, for Plaintiffs.

Christopher R.J. Pace, Michelle Hogan, Jones Day, Miami, FL, Alexander V. Maugeri, Pro Hac Vice, Jones Day, New York, NY, Donald J. Munro, Pro Hac Vice, Jones Day, Washington, DC, Jordan M. Matthews, Pro Hac Vice, Jones Day, Chicago, IL, for Defendant.

ORDER

TIMOTHY J. CORRIGAN, United States District Judge

Fifty-six putative class action plaintiffs (collectively, "Anderson") seek to represent a putative class composed of all United Airlines, Inc. employees and to halt United's Covid-19 vaccination program. The present motion is Anderson's Second Emergency Motion for Preliminary Injunction (the "Motion"). Doc. 28. The operative complaint is the Third Amended Verified Class Action Complaint ("TAC"). Doc. 27. United has filed a Response to the Motion. Doc. 30. The Court held a telephonic hearing on the Motion on December 8, 2021, the record of which is incorporated by reference. Docs. 38, 40.

I. BACKGROUND

A. Anderson's Class Action Complaint

Anderson filed his original Complaint on October 18, 2021. Doc 1. He informed the Clerk via phone that he would be filing a motion for a temporary restraining order ("TRO") the same day, as well as several times thereafter. He did not. Instead, he filed three amended complaints which added class action allegations and changed named plaintiffs. Docs. 4, 25, 27. He filed a motion for a TRO on November 1, 2021. Doc. 13. The Court denied the motion for failure to comply with the Local Rules. Doc. 14. Anderson filed the TAC and the Motion on November 17, 2021, a month after the original Complaint, and a day after the Court's deadline to file a renewed motion for preliminary injunction. Docs. 24, 27, 28.

Anderson's claims center around United's Covid-19 vaccine policies towards its employees. On August 27, 2021, United's Chief Executive Officer emailed the company instructing all employees to provide proof of vaccination by September 27, 2021. Doc. 27 ¶ 149. United also accepted applications for religious or medical accommodations from the mandate, which had to be submitted by August 31, 2021. Id. ¶¶ 157–59. It sent postcards to all employees who had not uploaded proof of vaccination informing them that individuals who were not vaccinated and had not received an accommodation would be separated from the company. Id. ¶ 156. On September 9, 2021, according to the TAC, United began informing employees that those who received religious or medical accommodations would be placed on unpaid leave for up to 72 months beginning on October 2, 2021. Id. ¶¶ 166–67. While the TAC is not entirely clear, it appears to allege that United later extended the date upon which individuals were required to be vaccinated to October 15, 2021.¹

In another case against United, on behalf of a much narrower putative class of individuals whose accommodation requests were denied by United, the Northern District of Texas issued a TRO that prevented United from implementing its Covid-19 vaccine policies until October 26, 2021, to allow for briefing on pending motions in that case. Doc. 66, Sambrano v. United Airlines, Inc., Case No. 4:21-cv-1074-P, 2021 WL 4760645 (Oct. 12, 2021 N.D. Tex.). The Sambrano court then extended its TRO until November 8, 2021. Doc. 95, Sambrano, 4:21-cv-1074-P. On November 8, 2021, the Texas court denied Sambrano's motion for preliminary injunction, thus permitting United's vaccine policy to go into effect. Sambrano v. United Airlines, Inc., No. 4:21-CV-1074-P, 570 F.Supp.3d 409 (N.D. Tex. Nov. 8, 2021), reconsideration denied, No. 4:21-CV-1074-P, 2021 WL 5445463 (N.D. Tex. Nov. 19, 2021) ; upheld by Sambrano v. United Airlines, Inc., No. 21-11159, 19 F.4th 839, 840 (5th Cir. Dec. 13, 2021). Thus, the Motion in this case was filed on November 17, 2021, nine days after the Texas-imposed TRO lapsed and United's policy went into effect. Doc. 28.

At 223 pages, the TAC is verbose and contains much irrelevant, inflammatory, and conclusory content. Doc. 27. It makes numerous conclusory allegations concerning the safety of Covid-19 vaccines, including that "vaccinations not work [sic], but they are causing more harm than good," killing tens of thousands and harming millions. Id. ¶¶ 87–89. It alleges that the vaccine violates plaintiffs’ rights because natural immunity is stronger than vaccinated immunity, that the vaccine is deadly or harmful, that the FDA violated its own drug approval policy, and that better therapies are available, including Ivermectin, hydroxychloroquine, and zinc. Id. at 11–31. The TAC alleges that hundreds of thousands have been sickened or killed by the vaccine itself, id. ¶¶ 87–88, that PCR tests are ineffective and inaccurate, id. ¶ 105, and that Covid-19 vaccines are especially harmful to airline pilots, who are generally fit and healthy, id. at 119–24. It alleges that the Covid-19 mRNA vaccines are in fact gene therapies, id. at 31–37, and that United's high bar for religious exemptions and stricter masking policies for the unvaccinated amount to discrimination, id. at 72. It alleges that among the measures United has considered taking to permit individuals who received vaccine accommodations to return to work have included "vaccine identification badges—similar to the gold-stars those in camps had to wear in the [sic] 1930's Germany."² Id. ¶ 168. Finally, the TAC alleges that United is a state actor because the company required vaccination following governmental signals, demonstrating that United is stepping into the government's role because the government is unable to mandate vaccines. Id. at 3–4; 97–115.

The TAC is also an impermissible shotgun pleading: each count incorporates each of the preceding counts. See Weiland v. Palm Beach Cty. Sheriff's Off., 792 F.3d 1313, 1321 (11th Cir. 2015). The TAC does not state the fifty-six named plaintiffs’ current or former positions at United, explain how they specifically have been harmed by United's policies, or identify whom among them has or has not been vaccinated.³ The TAC proposes a class of "slightly less than 67,000 employees," id. ¶ 213, consisting of:

all United employees who have and/or continue to be subjected to United's discriminatory, unlawful, and unconstitutional employment practices described in this complaint including the COVID-19 vaccine mandate; PCR testing; proof of vaccination or vaccine passports; and/or mask policies.

Id. ¶ 211.

The pleading deficiencies in the TAC alone make establishing entitlement to a preliminary injunction very difficult. However, the Court proceeds to consider the Motion.

B. Motion for Preliminary Injunction

The Motion asks the Court to immediately enjoin United from enforcing any of its Covid-19 mitigation measures. Doc. 28 at 2. Specifically, Anderson asks the Court to enjoin United from enforcing its vaccination policy, requiring employees to provide proof of vaccination, implementing its policy requiring masks and regular PCR tests for unvaccinated employees in non-customer facing positions, and sending printed material to those who have not been vaccinated.⁴ Id. He argues that United does not face any risk of potential harm from halting these activities, and that plaintiffs therefore need not put up a security or bond. Id. at 2–4.

The Motion argues that irreparable injury to plaintiffs and the putative class stems from the vaccines killing thousands of people. Id. at 22. Anderson argues that United violated Title VII by not providing meaningful religious accommodations for vaccine objectors. Id. at 21–22. Anderson also alleges that Congress and the executive have delegated power to United to the point that it has become a "state actor and co-conspirator." Id. at 19. As a co-conspirator with the government, Anderson alleges, United has violated constitutional rights. Id. Anderson argues that United's First Amendment violation (accepting that United is a state actor) "unquestionably constitutes irreparable injury" for the purposes of a preliminary injunction, citing Roman Cath. Diocese of Brooklyn v. Cuomo, ––– U.S. ––––, 141 S. Ct. 63, 67, 208 L.Ed.2d 206 (2020) (granting injunction blocking New York's Covid-19 restriction on more than ten people gathering in places of worship when commercial establishments did not have similar restrictions as disproportionate and in violation of the First Amendment) (per curiam). Anderson alleges that United has violated the Nuremberg Code, a set of medical principles for ethical human experimentation laid out in an opinion at the 1945 Nuremberg Trials, by forcing employees to get vaccinated or lose their livelihoods—in effect, removing their ability to consent. Doc. 28 at 17. Finally, the Motion argues that the benefit to plaintiffs of not being killed by a Covid-19 vaccine outweigh any harm or detriment to the public interest. Id. at 24–25.

The Motion argues that of the TAC's fourteen counts, the Genetic Information Non-Discrimination Act ("GINA") provides the strongest basis for Anderson's success, as mRNA vaccinations allegedly alter one's genes, and PCR testing constitutes an illegal test of an individual's genetic information. Id. at 11–15. At the hearing, Anderson confirmed that the Motion relied on the counts in the TAC arising under alleged violations of GINA (Counts I and II), 42 U.S.C. § 12112 (the Americans with Disabilities Act) (Count III), Title VII of the Civil Rights Act (Count IV), the Constitution and 42 U.S.C. § 1983 (Counts VII–XII), and the Nuremberg Code (Count XIII). Doc. 40 at 12:22–13:12.

C. United's Response

United's Response contains a "Counter-Statement of Facts" that puts forth its own exhibits and expert reports as well as filings and orders from...