A federal appeals court has been asked to give a group of pilots and other United Airlines employees their "day in court," after a federal district judge again ruled those United Airlines workers have failed to show why they should be allowed to continue with their discrimination lawsuit against the airline for firing them or otherwise taking action against them for refusing to receive a Covid shot.
U.S. District Judge Matthew Kennelly issued an opinion April 10 denying a motion from Thomas Anderson and 27 other pilots, flight attendants and ground workers seeking to file a fourth amended complaint. The judge further dismissed all 12 claims linked to the airline's August 2021 Covid vaccine mandate.
United required all employees to provide proof of an initial Covid vaccine injection by Sept. 27, 2021. According to court records, United granted accommodations to employees who claimed a medical or religious exemption, then placed those workers on unpaid leave on Oct. 2.
Only three of the plaintiffs allege they applied for the religious exemption, Kennelly wrote, and one alleged missing the deadline. But all claimed taking the vaccine would violate “sincerely held religious beliefs that their body is a temple, and that their Creator planned their existence upon their creation” because the vaccines are “gene-altering experimental therapies” leading to “a fundamental change in their genetic design that their Creator imparted within them.”
In September 2023 Kennelly rebuffed the original lawsuit, granting plaintiffs three weeks to amend the complaint by “stating at least one viable claim for which the court has jurisdiction.” They filed that complaint Sept. 26.
Kennelly reiterated the plaintiffs could not bring claims under the federal Food, Drug and Cosmetic Act because they missed the chance to respond to United’s argument that law’s emergency use authorization doesn’t allow private litigation.
“The fact that the court provided the plaintiffs with a final opportunity to remedy any pleading deficiencies — such as the omission of critical facts needed to state a plausible claim — does not mean that they are entitled to relitigate merits issues that the court has already decided,” he wrote. “Even if the court were to disregard the forfeiture issue, nothing in the plaintiffs’ brief dissuades the court that its previous ruling was incorrect.”
He similarly noted the plaintiffs forfeited claims based on allegations the postcards United sent to employees who hadn’t uploaded vaccine status constituted public disclosure of private facts because “aside from minor typographical corrections, the plaintiffs have made no changes to the allegations supporting either of these claims.”
The plaintiffs likewise made no significant updates to claims under the Illinois Whistleblower Act. But even setting that aside, Kennelly explained, the claims rested on allegations United violated Title VII religious freedom protections. He found they failed to adequately state those claims by not showing proof of exhausting potential administrative remedies, including by not obtaining right-to-sue notices from the Equal Employment Opportunity Commission.
The Title VII claims also failed, Kennelly said, because the complaint still lacks details on which plaintiffs requested a religious accommodation. Rather, their filings suggest some “requested medical rather than religious exemptions, that some of the plaintiffs are in fact vaccinated, that some plaintiffs were allowed to continue working while masked, and that many plaintiffs still work for United.”
Other Title VII claims Kennelly rejected for failure to exhaust administrative remedies include those for disparate treatment based on religious beliefs and hostile work environment. He said allegations United’s vaccine and testing mandates violated the Genetic Information Non-Discrimination Act failed because, as noted in September, the Covid shots don't equate to “genetic information.”
Although the workers sought to add language noting “the PCR test is capable of detecting genotypes, mutations, or chromosomal changes, thus meeting the definition of a ‘genetic test,’ ” he said that reference “includes only conclusory language that restates the statutory definition of a ‘genetic test’ in GINA that the court quoted in a footnote, without any factual support” or factual allegations grounding their claims.
Kennelly also said the workers’ various constitutional claims couldn’t have been remedied by an amended complaint and said they had already forfeited claims of intentional and negligent infliction of emotional distress. He dismissed the claims with prejudice.
On April 16, the workers filed a notice of appeal, as they seek to ask the U.S. Seventh Circuit Court of Appeals to overturn Kennelly's ruling.
The workers are represented by John Pierce Law, of Woodland Hills, California.
Attorney Roger Roots, of John Pierce Law, said “the plaintiffs have thus far been denied their day in court. All of them are hardworking pilots and airline staffers who were unlawfully fired for refusing the ineffective and improperly mandated COVID vaccines. It was a horrific episode of unlawful treatment of employees by United Airlines. Unfortunately, the Airline and the U.S. District Court are seeking to sweep the matter under the rug.”
United Airlines spokespeople declined to comment.