United Airlines Worker’s Misuse of FMLA Leave Grounds Claim

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By Jay-Anne B. Casuga

Nov. 1 — United Airlines Inc. didn’t violate federal law when it fired a worker for allegedly misusing medical leave during a vacation in South Africa and Italy and later lying about it, the Fourth Circuit ruled ( Sharif v. United Airlines, Inc. , 2016 BL 362251, 4th Cir., No. 15-1747, 10/31/16 ).

Masoud Sharif, who had been approved to take intermittent leave under the Family and Medical Leave Act because of an anxiety disorder, failed to show that the airline’s stated reason for his discharge was a guise for FMLA retaliation, the U.S. Court of Appeals for the Fourth Circuit held Oct. 31.

“The evidence taken as a whole plainly paints the picture of an employee who used FMLA leave to avoid interrupting his vacation, and then gave a variety of inconsistent explanations for his behavior upon his return,” the Fourth Circuit said, affirming the dismissal of Sharif’s claim.

The decision continues a trend among courts to generally side with employers in so-called FMLA abuse cases. United Airlines won a similar case in 2014 against a flight attendant who purportedly called out sick from Taipei for shifts in Denver that preceded a monthlong vacation.

Other examples in recent years include a Sixth Circuit ruling in favor of Cincinnati Bell Telephone Co. on the FMLA claim of a worker who allegedly attended an Oktoberfest celebration while on leave and a judgment by a federal court in Illinois for Nestle USA Inc. against a worker suspected of using FMLA leave to play golf and eat breakfast.

‘Extreme Facts' Will Limit Impact, Attorney Says

“In the long run, we believe the impact of Sharif will be limited to its extreme facts,” Stephen Z. Chertkof, an attorney for Heller, Huron, Chertkof & Salzman in Washington told Bloomberg BNA.

The Fourth Circuit found that Sharif's anxiety disorder didn't cause him to miss work because he had already missed the last possible flight home in time for his shift when he suffered a panic attack, said Chertkof, one of the authors of an amicus brief filed in the case on behalf of the National Employment Lawyers Association and the Metropolitan Washington Employment Lawyers Association.

“While this case has extreme facts, most cases will present factual questions unsuited to summary judgment resolution regarding whether an employee's medical condition caused his or her absence on a particular occasion,” he said.

Court Sidesteps ‘Honest Belief' Rule

NELA and the MWELA filed the amicus brief in the case to oppose the lower court's use of an “honest belief” analysis in ruling for United Airlines, according to Chertkof.

The Fourth Circuit in a footnote said it saw no reason to address the honest belief rule to decide the case.

“We are pleased that the court declined to adopt that reasoning,” Chertkof said.

Under the honest belief rule, an employer can avoid liability if it shows that it made a reasonably informed or considered decision before disciplining or firing an employee. Some courts, like the Sixth Circuit, have adopted that rule.

In recent years, employees have challenged the honest belief rule at least three times by seeking U.S. Supreme Court review. They've argued that the rule impermissibly allows courts to make credibility determinations that are best left to trial, and exceeds current standards for proving discrimination and retaliation cases.

But the justices have so far declined to hear those challenges.

Worker ‘Deciding on Next Steps.’

A jury should have heard Sharif's case, R. Scott Oswald of the Employment Law Group in Washington, one of the attorneys representing Sharif, told Bloomberg BNA Nov. 1.

The opinion “ignored” some of Sharif’s “strongest arguments regarding United’s mistaken conclusions about his actions,” Oswald said. “We will consult further with our client before deciding on next steps.”

A United Airlines spokeswoman told Bloomberg BNA that the company agrees with the court’s decision, but otherwise declined to comment on the ruling.

Court Rejects Worker’s Arguments

The Fourth Circuit rejected Sharif’s argument that United Airlines tried to cover up its retaliatory motive by conducting a cursory investigation of his alleged misuse of FMLA leave.

The airline reviewed Sharif’s work schedule, the time and place of his phone call requesting FMLA leave and flight records to determine if he had tried to book a flight back to the United States in time for his scheduled shift, it said.

It also gave Sharif an opportunity to tell his version of events, provide documentation and consult with a union representative, the court said.

“United Airlines had no obligation to pursue additional investigation when it had more than ample reason to believe it had been lied to,” it said.

Additionally, the appeals court was not persuaded by Sharif’s contention that skipping one shift shouldn’t have resulted in his termination.

“Discharge is not disproportionate to the offense of misrepresentation and fraud,” the court said.

Judge J. Harvie Wilkinson III wrote the opinion, joined by Judges Henry F. Floyd and Irene M. Keeley.

Andrea M. Downing of the Employment Law Group in Washington and Richard T. Seymour in Washington also represented Sharif. Angela H. France and Hugh S. Johnson Jr. of PCT Law Group in Alexandria, Va., represented United Airlines.

To contact the reporter on this story: Jay-Anne B. Casuga in Washington at jcasuga@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com

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