Murray,JoeBy Joseph S. Murray IV

A Halloween treat for employers and a trick for FMLA-abusing, dishonest employees: The 4th Circuit held that terminating an employee for abusing FMLA leave and for lying during an investigation into the FMLA abuse is not retaliation under the FMLA. Sharif v. United Airlines, Inc., No. 15-1747 (4th Cir. Oct. 31, 2016). While the ruling in this case was easy based on the facts, the 4th Circuit has provided a clear framework going forward for attorneys to defend or prosecute claims of FMLA retaliation when the circumstances surrounding the request for leave or the leave itself triggers an investigation and adverse action.

In 2009, Masoud Sharif was diagnosed with anxiety disorder. United approved every one of Sharif’s requests for FMLA leave to handle his panic attacks. Sharif used a total of 56 days of FMLA leave in the two years prior to his discharge, including days after United initiated an investigation into his FMLA use.

Sharif and his wife, who was also an employee of United, took an extended vacation to South Africa, with plans to stay from March 16 through April 4, 2014. While Sharif used 20 time-off days for the trip, he did not take off for two days, March 30 and 31. He instead used United’s shift-swap website to try to find another employee to cover those shifts. Sharif found another employee to cover his March 31 shift but not his March 30 shift.

While still in South Africa on March 30, Sharif called United at 1 a.m. EST (7 a.m. in South Africa) to take medical leave under the FMLA. Prior to making the call, Sharif had not made any advance reservations for a return flight nor had he attempted to obtain passage as a standby. Further, Sharif’s call was more than 12 hours after the last flight to America left South Africa prior to the March 30 shift. Sharif and his wife flew from South Africa to Italy on March 31 to visit family. On April 3, Sharif and his wife flew home to Washington in time for his wife’s next shift with United.

United noticed that Sharif had taken FMLA leave for the only shift he was scheduled to work during his extended vacation. It also determined that Sharif’s vacation time off coincided with his wife’s leave except for March 30 and that Sharif had taken FMLA leave under similar circumstances in September 2013. Based on this information, United initiated an investigation into Sharif’s FMLA usage.

On April 23, 2014, United met with Sharif and asked him about the vacation and March 30 FMLA usage. Sharif initially sat in silence for a period of minutes before giving a series of inconsistent answers. First, Sharif claimed he did not have to work on the 30th, but he could not adequately respond when asked why he would call out sick if he did not have to work. Then, after another pause, Sharif clarified that he tried to fly home on standby beginning March 29 but could not find any available flights—dates and reasons also shifted with this story. Sharif claimed he had a panic attack when he could not find a flight and that is why he requested FMLA leave. Due to Sharif’s behavior and shifting explanations, United believed Sharif was being dishonest and suspended him without pay.

United ultimately informed Sharif that it intended to terminate him for fraudulently taking FMLA leave and for making dishonest representations during the ensuing investigation. Prior to termination, Sharif retired under threat of termination.

Sharif then filed suit alleging that United’s threat to terminate his employment constituted retaliation for his taking FMLA leave. The district court granted United’s motion for summary judgment and the 4th Circuit affirmed since Sharif failed to present sufficient evidence of pretext.

The 4th Circuit stated that Sharif could prove his claim through direct evidence of retaliation or through the familiar McDonnell Douglas burden-shifting framework: The employee establishes a prima facie case of retaliation, the employer then rebuts the prima facie case with a legitimate, nondiscriminatory reason for the adverse action, then the employee has the burden to prove that the proffered explanation is pretext. An employee can prove pretext by showing the employer’s explanation is not credible or that the employer’s decision was more likely than not due to retaliation. The 4th Circuit went on to state that courts should evaluate pretext and employer intent by analyzing the context of the decision, the entirety of events leading up to the decision, deviations from normal procedure, and contemporaneous statements by decision makers.

With this legal framework in place, the 4th Circuit made quick work of Sharif’s arguments. The court accepted that Sharif established the prima facie case, but the court had no problem finding that Sharif’s shifting rationales and explanations, along with the contradictory or lacking evidence supporting the explanations, easily supported United’s reason for terminating Sharif. The court then found that each of Sharif’s arguments alleging United’s reason for termination was pretext failed because:

  • Initiating an investigation based on a lawful reason and not due to FMLA leave is not direct evidence of retaliation;
  • Despite Sharif’s contention that United’s investigation was insufficient, the court’s inquiry is whether the employer made a “reasonably informed and considered decision before taking an adverse employment action,” which United did (interestingly, the court commented in dicta that failure to comply with regular investigation procedures might be evidence of improper motive but it is not per se sufficient to create a genuine dispute to avoid summary judgment); and
  • Termination is not a disproportionate consequence for misrepresentation and fraud, even if United would not have terminated Sharif for missing work.

Since Sharif could not meet his burden of showing United’s decision was pretextual, the 4th Circuit affirmed the grant of summary judgment.