Sambrano v. United Airlines, Inc.
| Decision Date | 18 August 2022 |
| Docket Number | 21-11159 |
| Citation | 45 F.4th 877 (Mem) |
| Parties | 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, v. UNITED AIRLINES, INCORPORATED, Defendant—Appellee. |
| Court | U.S. Court of Appeals — Fifth Circuit |
Gene C. Schaerr, H. Christopher Bartolomucci, Esq., Brian Field, Mark R. Paoletta, Joshua James Prince, Schaerr Jaffe, L.L.P., Washington, DC, John Clay Sullivan, SL Law, P.L.L.C., Cedar Hill, TX, Robert C. Wiegand, Stewart Wiegand & Owens, P.C., Dallas, TX, for Plaintiffs-Appellants.
Hashim M. Mooppan, Donald James Munro, Esqs., Jones Day, Washington, DC, Russell Daniel Cawyer, Kelly, Hart & Hallman, L.L.P., Fort Worth, TX, Alexander Virgil Maugeri, Jones Day, New York, NY, Esteban Shardonofsky, Esq., Seyfarth Shaw, L.L.P., Houston, TX, for Defendant-Appellee.
Andrew Layton Schlafly, Far Hills, NJ, for Amicus Curiae Association of American Physicians & Surgeons.
Before Smith, Elrod, and Oldham, Circuit Judges.
ON PETITION FOR REHEARING EN BANC
Treating the petition for rehearing en banc as a petition for panel rehearing, the petition for panel rehearing is DENIED. See 5th Cir. R. 35 I.O.P. The petition for rehearing en banc is DENIED because, at the request of one of its members, the court was polled and a majority did not vote in favor of rehearing. Fed. R. App. P. 35 ; 5th Cir. R. 35.
In the en banc poll, four judges voted in favor of rehearing (Judges Smith, Higginson, Costa, and Willett), and thirteen judges voted against rehearing (Chief Judge Richman and Judges Jones, Stewart, Dennis, Elrod, Southwick, Haynes, Graves, Ho, Duncan, Engelhardt, Oldham, and Wilson).
In addition, United's motion to dismiss the appeal and vacate the panel opinion is DENIED.
Imagine that your employer suddenly declares that he finds one of your religious beliefs offensive. It could be your view on abortion, or marriage, or sexuality, or gender, or any number of other religious tenets. Your view has no economic impact whatsoever on the company. But it offends the sensibilities of the executives who populate the C-suite.
So the company puts you on unpaid leave for an indefinite period of time. And the only way you can reclaim your job is to abandon your religious convictions—and to do so irreversibly.
Imagine further that you love your God—and you also love your family, who counts on you and your livelihood to survive.
Finally, imagine that, if you can't get preliminary injunctive relief, you'll have no choice but to sacrifice your faith, in order to avoid sacrificing your family.
Now ask yourself this question: What measure of damages would make you whole? Put another way: For how much would you sell your soul?
If the very thought of this question vexes or offends you, you're not alone. For millions of Americans, you'd be hard-pressed to come up with a more obvious and compelling example of an incalculable, irreparable injury.
* * *
As the district court noted, the facts of this case are "disturb[ing]." Sambrano v. United Airlines, Inc. , 570 F. Supp. 3d 409, 420 (N.D. Tex. 2021).
United Airlines ordered all of its employees to obtain a COVID-19 vaccine—notwithstanding the fact that some of them have sincere religious objections that the vaccines were developed using aborted fetal issue.
Notably, United chose not to fire employees who refused the vaccine, but instead put them on indefinite unpaid leave, and made clear that the only way they could return to their jobs was to be vaccinated. It did so for one simple reason: to coerce its employees into violating their religious beliefs—and what's worse, to do so irrevocably and permanently.
There is no legitimate business justification for this action. It could not have been customer or employee safety, as United suggests. To the contrary, Oral Arg. at 7:48–8:04. Moreover, Id. at 8:04–8:31. As Plaintiffs contend, the real reason for the vaccine mandate and indefinite unpaid leave policy is "virtue signaling" and "currying political favor." Id. at 8:35–8:39.
So the plaintiffs filed suit under Title VII of the 1964 Civil Rights Act, among other things, and sought preliminary injunctive relief. The district court denied such relief for one simple reason—lack of irreparable injury.
I disagree with that holding, and I wrote as much in my dissent at the motions stage in this appeal. See Sambrano v. United Airlines, Inc. , 19 F.4th 839, 839 (5th Cir. 2021) (Ho, J., dissenting). So I was pleased when the panel majority at the merits stage of this appeal reached the same conclusion that I did—that being pressured into violating one's faith is an obvious irreparable injury. See Sambrano v. United Airlines, Inc. , 2022 WL 486610 (5th Cir. Feb. 17, 2022) (per curiam).
I concur in the denial of rehearing en banc. I write separately to explain why, contrary to the dissent, the panel majority's irreparable injury analysis is a relatively straightforward matter to defend.
Being placed on indefinite unpaid leave because your employer doesn't like your religious beliefs is obviously an adverse employment action and an actionable claim under Title VII of the Civil Rights Act of 1964. And you've obviously suffered irreparable injury when you're forced to violate your faith in order to get your job back.
The injury would be entirely reparable by money damages if it was just about a loss of money. But it's not. It's about a loss of faith. And it's about a crisis of conscience. You're being coerced into sacrificing your faith in order to keep your job.
No measure of damages makes sense in this scenario. To keep your job, you must violate your faith. How much money would it take for you to sell out your faith?
To ask the question is to answer it. It seems obvious that violations of conscience are classic irreparable injuries. That's why violations of the First Amendment have long been deemed irreparable. As the Supreme Court has held for decades, "[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, 96 S.Ct. 2673, 49 L.Ed.2d 547 (1976) (plurality op.). See also, e.g., Roman Cath. Diocese of Brooklyn v. Cuomo , ––– U.S. ––––, 141 S. Ct. 63, 67, 208 L.Ed.2d 206 (2020) (per curiam) (same).
Yes, we all know that the First Amendment governs government entities, not private corporations. But it seems obvious that the reason that First Amendment injuries are irreparable is not because it's inflicted by the government rather than business. It's because the very nature of religious belief is spiritual, rather than pecuniary.
The panel dissent disagrees. It claims that First Amendment violations are uniquely irreparable because they involve the government and the Constitution. Sambrano , 2022 WL 486610, at *24 (Smith, J., dissenting).
But the panel dissent cites no judicial authority to support this proposition. And for good reason.
To begin with, many courts, including our own, have applied the same irreparable injury analysis to statutory intrusions on religious liberty—including Title VII.
Take, for example, our decision in Opulent Life Church v. City of Holly Springs , 697 F.3d 279 (5th Cir. 2012). There we applied Elrod to a federal statute, the Religious Land Use and Institutionalized Persons Act (RLUIPA). We said that Elrod "applies with equal force to the violation of RLUIPA rights because RLUIPA enforces First Amendment freedoms, and the statute requires courts to construe it broadly to protect religious exercise." Id. at 295. Likewise, under the Religious Freedom Restoration Act (RFRA), "courts have recognized that this same [ Elrod ] principle applies." Id. (quoting Kikumura v. Hurley , 242 F.3d 950, 963 (10th Cir. 2001) ) ("[C]ourts have held that a plaintiff satisfies the irreparable harm analysis by alleging a violation of RFRA."). See also Jolly v. Coughlin , 76 F.3d 468, 482 (2nd Cir. 1996) ().
These same principles readily apply to Title VII's prohibition on religious discrimination. As we've observed, Title VII was "intended to protect the same rights in private employment as the Constitution protects." Riley v. Bendix Corp. , 464 F.2d 1113, 1116 (5th Cir. 1972) (quotations omitted). "At 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." Adeyeye v. Heartland Sweeteners , 721 F.3d 444, 456 (7th Cir. 2013).
So there's no basis for drawing a distinction between...
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