Haney v. United Airlines, Inc. et al

Filing 23

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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KEN HANEY,

Case No. 15-cv-00474-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 larger lawsuit filed in 2012 by 23 current

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or former employees of United Airlines alleging race discrimination. After several rounds of

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

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plaintiffs had finally 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 it fails to state a claim for disparate treatment discrimination under any

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of the three statutes.

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The complaint alleges that "several promotional practices and procedures implemented by
Defendants for filling vacant management positions in California are discriminatory against

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African Americans by treating African Americans less favorably than their non-African American

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counterparts in the terms and conditions of their employment." But the only "promotional

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practice" or "promotional procedure" identified in the complaint is that United does not "post"

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certain promotional opportunities. There is nothing inherently discriminatory or unlawful about

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not "posting" promotional opportunities. Nor does the complaint allege that United adopted its

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"practice" or "procedure" of not posting promotional opportunities for the purpose of preventing

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African Americans from getting the opportunities (which presumably would state a claim for

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disparate treatment discrimination).

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Without an allegation that the practice itself is intended to discriminate, to state a claim for
disparate treatment discrimination the plaintiff must allege that he himself suffered an adverse

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United States District Court
Northern District of California

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employment action because of his race, separate and apart from United's policy of not posting

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certain promotional opportunities. To put it another way, absent an allegation that the practice of

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not posting promotional opportunities is itself intended to discriminate, 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 complaint contains no allegation that the plaintiff sought out a promotion and was

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denied it because of his race. Instead, the complaint alleges that the plaintiff was "precluded from

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participating in the filling of the vacancies" of seemingly every unposted "managerial position"

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available at United Airlines throughout the country from 2008 to the present. The complaint

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alleges that this includes: "all permanent executive management positions, Chief Pilot, Assistant

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Chief Pilot, FODM, Director of Safety and Security, Director of Pilot Recruitment and

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Development, and Standards Captain." And then the complaint lists numerous examples of

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particular positions that were filled by people who were allegedly less-qualified and/or less senior

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than the plaintiff.

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The complaint goes on to allege that the plaintiff was "also precluded from participating in
the filling" of "special assignment positions." As it does with unposted "managerial positions," the
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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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But the allegation that United "precluded" the plaintiff from "participating" in the "filling"
of every unposted management position or special assignment position available throughout the

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country does not appear to state a claim for disparate treatment discrimination, because the

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allegation is too vague. How did United "preclude" the plaintiff from "participating" in the

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

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opportunity listed in the complaint, and that in every instance the applicable decisionmaker at

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United States District Court
Northern District of California

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United denied him the promotion because of his race? If so, that seems implausible on its face.

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Or does the plaintiff mean to allege that the failure to post the positions "precluded" him from

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applying in the first place? If so, that doesn't sound like disparate treatment discrimination (at

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least without an allegation that the practice of not posting the promotional opportunities was itself

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intended to prevent African Americans from learning about them). Perhaps the plaintiff means

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instead to allege there was a particular unposted position (or there were particular unposted

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positions) he sought out, where the decisionmaker (or decisionmakers) rejected him because of his

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race. That appears to be what counsel for 22 of the 23 plaintiffs suggested at the March 14, 2015

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case management conference. And that would appear to state a claim for disparate treatment race

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discrimination. But the complaint in this case contains no such allegation that the plaintiff sought

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

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In sum, the complaint is vague 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 the

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Fifth Amended Complaint should not be dismissed for failure to state a claim for disparate

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treatment discrimination. A hearing on the order to show cause will take place on May 21, 2015

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at 10:00 a.m. The defendants are ordered to file a brief on the order to show cause, not to exceed

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15 pages, by April 24, 2015. The defendants' brief should be limited to whether the complaint

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fails to state a claim, but it need not be limited to the specific issues discussed in this order. The
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plaintiff is ordered to file a brief, responding to this order to show cause and to anything else

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contained in the defendants' brief, by May 8, 2015. The plaintiff's brief also may not exceed 15

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pages. Both parties are reminded that this is now an individual case. Any arguments about why

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the complaint should or should not be dismissed should be tailored to this specific case and this

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specific plaintiff. And the plaintiff cannot state a claim by alleging discrimination against other

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people.
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, he has leave to do so. Any amended complaint must be filed

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no later than May 8, 2015 – the date his response to the order to show cause is due. If the plaintiff

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United States District Court
Northern District of California

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files an amended complaint, the May 21 hearing will be converted to a case management

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conference.

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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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