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Media Alerts - Sharif v. United Airlines, Inc. and United Continental Holdings, Inc.
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November 17, 2016
  Sharif v. United Airlines, Inc. and United Continental Holdings, Inc.
FMLA Leave Fraud Does Not Pay for Globetrotting United Airlines Worker

Areas of Law: Labor and Employment, Family and Medical Leave Act (FMLA)

Issue Presented: Whether an employee, who fraudulently took FMLA leave, has sufficient evidence to show that the employer's reasons for disciplining him were pre-textual and the true reason for the discipline was retaliatory.

Brief Summary:
Masoud Sharif took FMLA leave in the middle of an extensive trip to South Africa. His employer, United Airlines, investigated him and found that he had taken the leave fraudulently. When questioned about the leave, Mr. Sharif presented inconsistent narratives. United placed him on leave without pay for dishonesty and fraudulently taking leave. Mr. Sharif retired and sued United for retaliation under the FMLA. The United States Court of Appeals for the Fourth Circuit upheld a grant of summary judgment for United. The court held that Mr. Sharif did not have sufficient evidence to show that United's reasons for disciplining him were a pretext for retaliation. It further admonished that those who fraudulently take FMLA leave cannot take advantage of FMLA's protective provisions.

Extended Summary: On March 16th 2015, Masoud Sharif and his wife embarked on an extended vacation in South Africa. The two took approximately twenty days of leave from their employer, United Airlines. There was just one bump in the plan. Mr. Sharif could not get a co-worker to cover his March 30th shift. Nonetheless, the couple departed for South Africa without reserving return flights.

On March 30th at 7:00 a.m. Cape Town time, Mr. Sharif called United Airlines and left a message informing his employer that he would be taking medical leave under the Family Medical Leave Act (FMLA). Mr. Sharif suffers from panic attacks and was entitled to intermittent leave under the FMLA.

On March 31st, the Sharifs had still not made any reservations to return to Washington. Instead, they flew to Milan to visit Mr. Sharif's niece. Finally, on April 3rd, the Sharifs returned to Washington in time for Mrs. Sharif's next shift.

The United Airlines Employee Resource Center noted that Mr. Sharif had taken just one day of FMLA leave during his long vacation. When they discovered that he had done the same in September 2013, they informed a supervisor, who commenced an investigation. In the course of the investigation, Mr. Sharif was given the opportunity to explain himself to supervisors with a union representative present. Mr. Sharif first said that he was not scheduled to work that day. Then, he said that he did not remember calling out. Finally, he claimed he had started looking for a flight home on March 28th so that he could return for his shift and celebrate Persian New Year in Pittsburgh. He told the investigators that when he could not find a flight back to Washington for his shift he had a panic attack and called United to take leave under the FMLA.

United did not find Mr. Sharif's shifting narrative compelling and suspended him without pay for dishonesty and fraudulently taking FMLA leave - violations of the United Airlines Working Together Guidelines. United made it clear that Mr. Sharif would soon be terminated. The Union suggested that Mr. Sharif retire. Fearing termination, Mr. Sharif retired.

Mr. Sharif filed suit under 29 U.S.C § 2615 (a)(1), which makes it unlawful for an employer to "interfere with, restrain, or deny the exercise or attempt to exercise, any right guaranteed under the" FMLA. United Airlines moved for summary judgment, which the District Court granted. On appeal, Mr. Sharif sought to show he had sufficient evidence that the reasons given for his suspension were pre-textual and that United had actually disciplined him for taking FMLA leave.

The Fourth Circuit explained that the purpose of the FMLA is to provide job security to individuals with serious health conditions who need to take extensive leave. These individuals must provide documentation of their condition to the employer and then may take leave "when medically necessary." The provision of the FMLA under which Mr. Sharif sued bolsters the Act's purpose by preventing retaliation.

In order to prove an employer's action was retaliatory, the employee must show that 1) he engaged in a protected activity; 2) the employer took an adverse action against him; and 3) a causal connection between the protected activity and the adverse action exists. To do this, the employee may submit direct evidence of retaliation or utilize the McDonnell Douglas burden-shifting scheme. Under McDonnell Douglas, if the employee makes a prima facie showing of retaliation, the employer must show a nondiscriminatory reason for the adverse action. Then the employee may show that this reason is pre-textual by showing that a) the reason is not credible; or b) the decision was more likely than not retaliatory.

Mr. Sharif mounted a series of attacks attempting to show United's reasons for disciplining him were pretext. The Fourth Circuit rejected all of these.

First, Mr. Sharif attempted to rehabilitate his own narrative. He claimed he had a panic attack after not being able to find a flight home in time for his shift and then called out of work. He also explained that he gave inconsistent accounts in the interview because he had another panic attack during the interview. The court did not find this explanation convincing in light of other facts. First, Mr. Sharif had called to take the FMLA leave twelve hours after the last flight that would have returned him to Washington in time for his shift. Second, the Sharifs flew to Milan from Cape Town and then returned to Washington in time for the wife's shift. Third, his narrative of these events constantly shifted. Finally, Mr. Sharif was unable to provide receipts for the standby seats he claimed he purchased when asked by United. Based on this information, the court found it reasonable for United Airlines to conclude that Mr. Sharif simply did not want to return from his vacation. The court also recounted United Airlines' history with FMLA leave. It found that United had approved every FMLA leave request Mr. Sharif had submitted over two years - a total of fifty-six days. The court concluded that "this is not the record of a Company that is historically hostile to FMLA leave."

Second, Mr. Sharif claimed that the Employee Resources Center's notice to a supervisor that triggered the investigation was direct evidence of retaliation. But, the notice was purely factual. It stated that Mr. Sharif had taken FMLA leave during vacation and that he had done so before in 2013. Mr. Sharif argued that it showed he would not have been disciplined but for his taking of FMLA leave. The court disagreed and determined that the notice actually suggested a nondiscriminatory reason for United's actions.

Mr. Sharif next argued that United had only conducted a cursory investigation and had not complied with procedure. He said this showed pretext. Contrarily, the court explained, United had taken the appropriate steps in its investigation and had even given Mr. Sharif the opportunity to explain himself and provide proof of his version of the events. United had reviewed Mr. Sharif's work calendar, flight records, Mr. Sharif's phone call from South Africa, and Mr. Sharif's seat reservation history. But, Mr. Sharif stated that more was required - verification of his anxiety disorder, an independent check of seats on flights, and more opportunity to consult with the union. The court found United's actions sufficient. All that is required on the part of the employer is a "reasonably informed and considered decision." Mere failure to comply with procedure is insufficient to show pretext.

Finally, Mr. Sharif claimed that if he had skipped the shift rather than taking FMLA leave, he would not have received such sever discipline. So, the severity of the consequence for taking FMLA leave showed pretext. The court stated that addressing severity would make it a "super-personnel department." The consequences, however, seemed reasonable for fraud and dishonesty.

The court admonished that the FMLA serves the purpose of protecting employees who need intermittent leave. Thus, it cannot be fraudulently invoked. And, the court explained, the Department of Labor has issued regulations that disallow employees who fraudulently obtain FMLA leave from invoking FMLA protections.

Dishonest employees, the court remarked, pose a special risk to airlines that are charged with providing transportation services to the public. The court upheld summary judgment for United.

To read the full opinion, click here.

Panel: WILKINSON and FLOYD, Circuit Judges, and IRENE M. KEELEY, United States District Judge for the Northern District of West Virginia, sitting by designation.

Argument Date: 09/21/2016

Date of Issued Opinion:

Docket Number: No. 15-1747

Decided: Affirmed by published opinion

Case Alert Author: Laura Tallerico, Univ. of Maryland Carey School of Law

Counsel: ARGUED: Robert Scott Oswald, THE EMPLOYMENT LAW GROUP, P.C., Washington, D.C., for Appellant. Hugh Scott Johnson, Jr., PCT LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. Stephen Z. Chertkof, HELLER, HURON, CHERTKOF & SALZMAN, PLLC, Washington, D.C., for Amici Curiae. ON BRIEF: Andrea M. Downing, THE EMPLOYMENT LAW GROUP, P.C., Washington, D.C.; Richard T. Seymour, LAW OFFICE OF RICHARD T. SEYMOUR, P.L.L.C., Washington, D.C., for Appellant. Angela H. France, PCT LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. Erik D. Snyder, LAW OFFICES OF ERIK D. SNYDER, Washington, D.C.; Alan R. Kabat, BERNABEI & WACHTEL, PLLC, Washington, D.C.; Matthew C. Koski, NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, Oakland, California, for Amici Curiae.

Author of Opinion: Judge Wilkinson

Case Alert Supervisor: Professor Renée Hutchins

    Posted By: Renee Hutchins @ 11/17/2016 09:15 AM     4th Circuit  

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