Labor & Employment Law Daily Wrap Up, DISCRIMINATION—S.D. Tex.: Race, national origin discrimination claims of Spanish-speaking airline employee survive dismissal, (Feb 24, 2026)

By Nicholas Kaster, J.D.

The allegation of his months-long suspension without pay clearly affected the terms, conditions, or privileges of his employment and therefore met the adverse employment action requirement.

A federal district court in Texas ruled that a Hispanic employee’s race and national origin discrimination claims against United Airlines can proceed to discovery. The employee, who was from Puerto Rico and spoke primarily Spanish, was suspended without pay following an investigation for time-clock fraud. He claimed that only he and another Hispanic employee were investigated for fraud and that he was compelled to resign. The court denied the employer’s motion to dismiss, finding that the employee’s suspension without pay qualified as an adverse employment action. Whether the non-Hispanic employees who were not were sufficiently similarly situated was an issue more appropriate for adjudication at summary judgment, the court stated (Mercado v. United Airlines, Inc., No. H-25-4696 (S.D. Tex. Feb. 20, 2026)).

The employee’s primary language is Spanish and his English is heavily accented. He began working for United Airlines in 2000, joining United’s “Move Team” in September 2019. At that time, he was given a one-page “Personal Vehicle Parking Policy,” which told the Move Team members where to park during their shifts. He was also given verbal instructions from team members on how to clock in and out for his shifts via a mobile app or at physical kiosks located in “various areas” at the George Bush Intercontinental Airport (IAH).

Clocking in and out. The employee claimed that after the initial parking policy and verbal instructions were provided, the Move Team members’ assigned parking was changed three different times to different areas and terminals of IAH and that these changes were only verbally communicated. He asserted that it was “still understood that” members could clock in and out for shifts via the app or at the closest kiosk, “with no formal written policy stating designated clock in and out areas for Move Team members.” During COVID, however, the Move Team members were instructed to use a specific kiosk to clock in and out. After the pandemic emergency protocols ended, the Move Team could again clock in and out using the app or at available kiosks throughout IAH.

One day in June 2023, the employee clocked out of his shift using the app but it did not record the time he clocked out. One of his superiors told the employee that she had to write him up for not clocking out. When he learned of the write-up, the employee contacted another supervisor to provide photographic evidence of when he arrived at work. Despite the dated and time-stamped photos, the superior allegedly refused to remove the write-up from the employee’s file. The union representative and shop steward told the employee to file a written complaint with the HR department against the superior, but there was no evidence that he ever filed such a complaint.

On November 23, 2024, the employee alleged that he entered IAH through the Mail House and attempted to clock into the kiosk but it did not work. He took a photograph of the time on the clock and his ID and sent the photos to his superior to prove that he was starting his shift on time. He then used the app to clock in. However, he claimed that his superior told him that he was not allowed to clock in at the Mail House and that she would not correct the clock-in error.

Targeted. He alleged that he felt “confused and targeted” by the superior’s comments and her refusal to correct the misinformation, and that he was “not provided with any verbal or written instruction on the alleged designated area where he was to clock in and out.” The employee alleged that he did not hear from anyone about the November 23 incident or other time-clock issues again until February 2025. He claimed that over the “next couple of months,” he continued to ask his coworkers and other Move Team members about any new policy or instruction for clocking in and out, and no one said that they had been given any new instructions.

Investigation. On February 3, 2025, the employee was called into a conference with various company officials and an HR rep, as part of an internal investigation. The HR rep asked the employee in rapid English about his clock-ins from more than a year earlier. He asked for translation help but was denied this help and the meeting proceeded in English only. The employee claimed that he had difficulty responding to the questions and could not ask any clarifying questions, which led to him being “accused of making false statements and of timeclock fraud.”

Suspension. The employee was placed on suspension without pay. The day after the meeting, the HR rep asked the employee to submit a letter explaining the dates he entered through different areas of IAH to clock in for his shifts. He alleged that the English-Spanish language barrier put him in a disadvantageous position that “enabled” United’s “discriminatory targeting” of him as a Hispanic employee from Spanish-speaking Puerto Rico.

The employee asserted that the only other Move Team member investigated for time-clock rule violations was a Hispanic Mexican male coworker. United did not investigate the time-clock practices of other Move Team members, although according to the employee, they “were continuing to clock in and out from the mobile application or nearest kiosk.”

Compelled resignation. On April 2, the employee received a letter informing him of an Investigative Review Meeting scheduled for April 10. The letter cited “proposed termination” as the reason for the meeting. It also stated that a company investigation had substantiated that between January 2024 and November 2024, the employee clocked in at least 26 times at kiosks located in buildings other than his designated work area to “falsely give the impression” that he had arrived at work on time. He claimed that he was told by an unspecified person that his only option would be retirement by resignation because United Airlines does not forgive these kinds of situations and always fires employees accused of such matters.” The employee alleged that he “was compelled” to resign on April 3, 2025.

In October 2025, the employee sued United, asserting race discrimination and national origin discrimination under Title VII and 42 U.S.C. § 1981. United moved to dismiss the claims.

Discrimination claims. United argued that the employee failed to plead sufficient facts to support the third and fourth elements of his prima facie case. As to the third element, United argued that the employee failed to sufficiently allege a constructive discharge because he failed to “allege either discrimination with aggravating factors or harassment beyond a hostile work environment,” and that without alleging constructive discharge, he has failed to plead an adverse employment action. As to the fourth element, United argued that the employee failed to “identify a specific comparator—meaning someone with a comparable number of instances of timeclock fraud—outside his protected class in order to state a claim.”

In response, the employee argued that: (1) constructive discharge can be shown by an employer’s adverse actions acts against an employee, whether or not those actions constitute “harassment” in the traditional sense; (2) suspension without pay is an adverse employment action; and (3) there was no need for him to name a specific comparator because no other employees besides himself and another Hispanic employee were even investigated for time-clock fraud.

Adverse employment action. The court determined that the employee’s suspension without pay qualified as an adverse employment action, regardless of the parties’ dispute about constructive discharge. The Fifth Circuit recently clarified the definition of “adverse employment action.” A plaintiff need only show that he was discriminated against, because of a protected characteristic, with respect to hiring, firing, compensation, or the terms, conditions, or privileges of employment.

The employee’s allegation of his months-long suspension without pay clearly affected the terms, conditions, or privileges of his employment and met the adverse employment action requirement, the court stated.

The employee also sufficiently alleged that he was treated differently because of his protected status. Under Fifth Circuit case law, the court explained, an employee need not necessarily show each prong of the prima facie test for disparate treatment at the pleading stage and scrutinizing whether the employees’ fellow employees are really “similarly situated” is “more suited to the summary judgment phase.”

United framed the issue as whether the employee’s non-Hispanic coworkers “remained employed after double-digit instances of timeclock fraud.” This was too narrow, said the court. The issue was whether the employee’s non-Hispanic coworkers were not only suspended without pay or fired but investigated for time-card fraud after clocking in via the app or at any available kiosk at IAH, rather than at a designated kiosk. The investigation and suspension were necessarily coupled. The adverse employment action was only possible because the employee was investigated, and that investigation allegedly happened because of his race or national origin.

“Although not a model of clarity,” said the court, the employee’s complaint alleged that (1) other Move Team members clocked in and out via the app or at the nearest available kiosk but were not investigated, and (2) the only Move Team members who were investigated, and then had adverse employment actions taken against them, were the two Hispanic members of the team. Whether the non-Hispanic Move Team members who were not investigated and therefore could not have been suspended for identical activities were sufficiently similarly situated is an issue more appropriate for adjudication at summary judgment, the court stated.

The case is No. H-25-4696.

Judge: Rosenthal, L.

Attorneys: Bruce A. Coane (Coane and Associates) for Cesar D. Mercado. Amit K. Misra (The Misra Legal Group) for United Airlines, Inc.

Companies: United Airlines, Inc.

Cases: Discrimination NationalOrigin RaceDiscrimination Discharge TexasNews