by Marti Cardi, Esq. - Senior Compliance Consultant and Legal Counsel,
November 16, 2016
Plaintiff Masoud Sharif and his wife were employed by United Airlines at the Dulles Airport in Washington, D.C. He and his wife took vacation to South Africa from March 16 to April 4, 2014. Mr. Sharif, however, was scheduled to work on March 30 and 31. He was able to get a co-worker to cover his shift on the 31st, but was not able to get coverage for his shift on the 30th.
Sharif suffered from anxiety and panic attacks and had previously been approved by United to take intermittent FMLA for his condition. On March 30 he called in to report FMLA for that day. HR noticed that he had reported FMLA for his only scheduled workday during an extended vacation period and launched an investigation. Sharif was interviewed and gave conflicting explanations – at one point claiming he did not think he had to work that day, then claiming he could not locate a flight home in time for his shift, though he and his wife flew to visit a niece in Milan from March 31 until April 4.
As a result of these conflicting explanations, United notified Sharif of its intent to discharge him from employment for fraudulent use of FMLA and violating a United policy requiring truthfulness in communications. As a union employee, he was entitled to a hearing, but when the union advised him he would be unlikely to prevail, he elected to retire.
Sharif then sued United, claiming the airline fired him in retaliation for taking FMLA leave. According to the 4th Circuit, the facts developed as follows:
- At 7:00 a.m. Cape Town Time (1:00 a.m. Eastern Standard Time) on March 30—the day of his scheduled shift—Sharif called United Airlines to take medical leave under the FMLA.
- He had not made any advance reservations for a return flight.
- The next day, Sharif and his wife flew from Cape Town to Milan, Italy, where Sharif’s niece lived.
- On April 3, Sharif and his wife finally departed for Washington and arrived just in time for his wife’s next shift.
- On April 23, 2014, United representatives interviewed Sharif with a union representative present. When asked about his vacation and March 30 absence, Sharif sat in silence for a period of minutes before he gave a series of inconsistent answers.
- Sharif first replied that he was not scheduled to work on March 30, and when asked why he had taken FMLA leave if he did not have a shift, Sharif responded that he “d[id] not recall being out sick this day or calling out sick.”
- After another pause, Sharif clarified that he began trying to return home flying standby (as airline employees often do) beginning March 29 but was unable to find any available flights.
- Sharif’s story later evolved to claim he actually arrived at the airport on March 28 to begin looking for a flight, and that he and his wife obtained the additional days off in April to gather with family in Pittsburg for the Persian New Year.
- As a result of his repeated unsuccessful attempts to find any means to return to Washington in time for his shift, Sharif explained that he grew anxious and was eventually seized by a panic attack which then led to his use of FMLA leave.
The district court had granted summary judgment in favor of the airline – meaning United won and the case would not go to a jury trial. The 4th Circuit agreed with the district court and affirmed summary judgment for United. In particular, the court emphasized that Sharif had to prove that United’s explanation for its determination that he had violated its policies and that his conducted warranted termination was a pretext for retaliating against him for taking leave. Sharif failed to present sufficient evidence, and quite to the contrary, the evidence supported that United had “ample reason to believe it had been lied to,” citing to the FMLA regs. “An employee who fraudulently obtains FMLA leave from an employer is not protected by the FMLA’s . . . provisions.” 29 C.F.R. § 825.216(d).
Sharif v. United Airlines, __ F.3d ___, 2016 WL6407391 (4th Cir. Oct.31, 2016).
Pings for Employers: The FMLA offers a few tools for employers to curb suspected abuses, including prompt action to investigate to support the suspicion of improper FMLA usage. United did a number of things well, beginning with noticing there was an issue. When someone reports leave in the middle of pre-planned vacation, that is understandably cause, at a minimum, for inquiry. Also:
- United kept to the facts. They did not draw conclusions, but rather, asked Sharif to provide an explanation in interviews and invited him to submit a written statement;
- The airline did not take adverse employment action until they had the objective facts to support that not only did Sharif report FMLA on a day that did not appear to be for a covered reason; and
- United also pursued Sharif’s violation of the Company’s policies governing dishonesty – a reason for termination independent of FMLA usage (although the dishonesty related to FMLA usage). This kind of policy should be part of every employer’s code of conduct.
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