Noble v. United Air Lines, Inc. et al

Filing 21

ORDER TO SHOW CAUSE: Order to Show Cause Hearing set for 5/21/2015 10:00 AM. Show Cause Response due by 4/24/2015. Replies or Amendments to the Complaint due by 5/8/2015. Signed by Judge Vince Chhabria on 4/10/2015. (knm, COURT STAFF) (Filed on 4/13/2015)

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA

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PAUL C. NOBLE,

Case No. 15-cv-00461-VC

Plaintiff,
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v.

ORDER TO SHOW CAUSE

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UNITED AIRLINES, INC., et al.,
Defendants.

United States District Court
Northern District of California

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The plaintiff in this case was originally part of a lawsuit filed by 23 current or former

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employees of United Airlines alleging race discrimination. After several rounds of motions to

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dismiss for failure to state a claim, the previously-assigned judge concluded that the plaintiffs had

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ultimately stated a claim for disparate treatment discrimination (but not disparate impact

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discrimination). Then, the previously-assigned judge concluded that the 23 plaintiffs had been

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improperly joined, and ordered that the case be severed into 23 separate lawsuits. Each plaintiff

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then filed a separate complaint (labeled as the "Fifth Amended Complaint"), and the lawsuits were

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assigned to numerous different judges in this district pursuant to the Court's random assignment

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system. Then Chief Judge Hamilton, acting in her capacity as Chair of this Court's Executive

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Committee, issued an order reassigning all 23 cases to the undersigned judge, to conserve judicial

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resources and avoid duplication of effort.

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The Court has reviewed the Fifth Amended Complaint in this individual case, and is

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tentatively of the view that most of the allegations fail to state a claim for disparate treatment

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discrimination.

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The complaint alleges that the plaintiff applied for certain promotions, that United rejected
him because of his race, and that United gave the promotion to a person who was less qualified

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and/or less senior than the plaintiff. To that extent, the complaint appears to state a claim for

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disparate treatment discrimination.

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But the complaint also contains lengthy allegations about "unposted managerial positions"

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and unposted "special assignment positions." With respect to unposted managerial positions, the

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complaint alleges that the plaintiff was "precluded from participating in the filling of the

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vacancies" of seemingly every unposted "managerial position" available at United Airlines

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throughout the country from 2008 to the present. The complaint alleges that this includes: "all

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permanent executive management positions, Chief Pilot, Assistant Chief Pilot, FODM, Director of

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Safety and Security, Director of Pilot Recruitment and Development, and Standards Captain."
And then the complaint lists numerous examples of particular positions that were filled by people

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United States District Court
Northern District of California

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who were allegedly less-qualified and/or less senior than the plaintiff. With respect to unposted

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"special assignment positions," the complaint alleges that the plaintiff was "also precluded from

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participating in the filling" of these positions. As it does with unposted "managerial positions,"

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the complaint lists numerous categories of "special assignment positions" that United allegedly

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"precluded" him from "participating" in "filling." And as it does with the unposted managerial

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positions, the complaint goes on to provide examples of individual special assignment positions

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that were filled by people allegedly less-qualified and/or less senior than the plaintiff.

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Absent from the complaint, however, is an allegation that United deliberately decided not

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to "post" these managerial and special assignment positions out of a desire to prevent African

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Americans from applying for the positions. Presumably such an allegation would state a claim for

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disparate treatment race discrimination. But absent such an allegation, it doesn't matter whether a

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particular position was posted or not. Either the plaintiff sought out a position and was denied it

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because of his race (in which case there would be a claim for disparate treatment discrimination),

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or he did not seek out the position (in which case there would be no claim for disparate treatment

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discrimination).

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The allegation that United "precluded" the plaintiff from "participating" in the "filling" of

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every unposted management position or unposted special assignment position available

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throughout the country does not appear to state a claim for disparate treatment discrimination,
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because the allegation is too vague. How did United "preclude" the plaintiff from "participating"

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in the "filling" of positions? Does the plaintiff mean to allege that he sought out every

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promotional opportunity listed in the complaint, and that in every instance the applicable

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decisionmaker at United denied him the promotion because of his race? If so, that seems

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implausible on its face. Or does the plaintiff mean to allege that the failure to post the positions

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"precluded" him from applying in the first place? If so, that doesn't sound like disparate treatment

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discrimination (at least without an allegation that the practice of not posting the promotional

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opportunities was itself intended to prevent African Americans from learning about them).

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Perhaps the plaintiff means instead to allege there was a particular unposted promotion (or there
were particular unposted promotions) that he sought out, where the decisionmaker (or

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United States District Court
Northern District of California

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decisionmakers) rejected him because of his race. That appears to be what counsel for 22 of the

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23 plaintiffs suggested at the March 14, 2015 case management conference. And that would

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appear to state a claim for disparate treatment race discrimination. But the complaint in this case

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contains no such allegation that the plaintiff sought a particular unposted managerial or special

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assignment promotion or promotions and was denied them for race-based reasons.

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In sum, aside from the allegations about the posted positions for which the plaintiff

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actually applied, the complaint is not clear about which conduct the plaintiff alleges was racially

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discriminatory as to him individually. Therefore, the plaintiff is ordered to show cause why

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lengthy allegations in the Fifth Amended Complaint about unposted managerial positions and

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unposted special assignment positions should not be stricken. A hearing on the order to show

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cause will take place on May 21, 2015 at 10:00 a.m. The defendants are ordered to file a brief on

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the order to show cause, not to exceed 15 pages, by April 24, 2015. The defendants' brief should

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be limited to whether the allegations about the unposted managerial positions and special

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assignment positions state a claim, but it need not be limited to the specific issues discussed in this

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order. The plaintiff is ordered to file a brief, responding to this order to show cause and to

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anything else contained in the defendants' brief, by May 8, 2015. The plaintiff's brief also may not

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exceed 15 pages.

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Both parties are reminded that this is now an individual case. Any arguments should be
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tailored to this specific case and this specific plaintiff. Any allegations about discrimination

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against other people do not state a claim as to this plaintiff.

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Finally, if the plaintiff decides, after reviewing this order to show cause and the defendants'

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brief, that he prefers to amend his complaint to attempt to better allege facts that would support an

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individual disparate treatment claim relating to the unposted managerial positions or the special

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assignment positions, he has leave to do so. Any amended complaint must be filed no later than

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May 8, 2015 – the date his response to the order to show cause is due. If the plaintiff files an

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amended complaint, the May 21 hearing will be converted to a case management conference.

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United States District Court
Northern District of California

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IT IS SO ORDERED.
Dated: April 10, 2015
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VINCE CHHABRIA
United States District Judge

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