Court Says Airline Employee Abused FMLA

By Robert N. Dare Dec 7, 2016
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The 4th U.S. Circuit Court of Appeals affirmed summary judgment in favor of United Airlines, ruling that an employee's one-day Family and Medical Leave Act (FMLA) request constituted abuse of the statute since he was using it to continue his three-week vacation, rather than as time off for an anxiety disorder.

Masoud Sharif and his wife were both employed by Dulles Airport in the Washington, D.C., area, where they assembled roughly 20 days of time off from March 16 to April 1, 2014, for a trip to South Africa. However, the time off did not include a two-day period from March 30 to 31. Sharif found someone to cover his March 31 shift in the customer lounge, but he was unable to find anyone to cover his March 30 shift.

Sharif was diagnosed with an anxiety disorder in 2009, and United had approved his request to take intermittent leave under the FMLA to handle panic attacks. On March 30, the day of his scheduled shift, Sharif called United at 1:00 a.m. Eastern Time to take medical leave under the FMLA. At the time he made the phone call, he and his wife had not made arrangements for their trip home. The next day, Sharif and his wife flew to Milan to visit his niece, and on April 3, the couple departed for Washington, D.C.

After noticing Sharif had taken FMLA leave for the only shift he was scheduled to work in the middle of extensive time off, HR employee Kenneth Martin commenced an investigation, which included an interview of Sharif.

When asked about his vacation and March 30, Sharif offered inconsistent explanations. First he claimed that he attempted to fly standby on March 29 but was unable to find an available flight due to a jazz festival and pilot strike, then his story evolved to claim he actually arrived at the airport on March 28 to look for a flight to Pittsburgh to see family for the Persian New Year, but he was unable to find a flight. As a result of the inability to find a flight back to Washington in time for his shift on March 30, Sharif explained that he grew anxious and was eventually seized by a panic attack, which led to his use of FMLA. United ultimately notified Sharif of its intention to discharge him for fraudulently taking FMLA leave, and for making dishonest representations during the investigation. Sharif retired under threat of termination.

Sharif brought suit under the FMLA, claiming United threatened to terminate his employment in retaliation for taking FMLA leave. The airline responded that Sharif was discharged not only for fraudulently taking FMLA leave but also for being untruthful during the ensuing investigation in violation of the company guidelines.

[SHRM members-only toolkit: Managing Family and Medical Leave]

Rejecting Sharif's claim that United's reasons for termination were pretext, the court pointed out that his "whole story runs into multiple problems. The undisputed evidence depicts an employee departing for vacation despite being scheduled to work, and then conveniently calling in FMLA leave 12 hours after the last plane departed that would allow him to return before his scheduled shift. Sharif also waited to contact United Airlines until the middle of the night in Washington when no one was present to answer the phone and ask for details about his FMLA claim."

In addition, the court noted, Sharif offered shifting explanations when asked about his vacation and efforts to return, and he provided no evidence to the company to support any version of his story. In contrast, the court observed, United's explanation for its action remained a consistent one.

The court also noted that in FMLA retaliation cases, when it evaluates employer intent and the question of pretext, a court may consider the historical background of the challenged decision, the sequence of events leading to the decision, and any departures from the normal procedural sequence. In that respect, the court observed that United had approved every one of Sharif's requests for FMLA leave in the two years prior to his discharge, totaling 56 days; not the record of a company that is historically hostile to FMLA leave.

Concluding that Sharif used FMLA leave to avoid interrupting his vacation and then gave a variety of inconsistent explanations for his behavior upon his return, the court held that he fraudulently obtained FMLA leave, and thus he was not protected by the FMLA's retaliation provision. To hold otherwise, the court explained, "would disable companies from attaching any sanction or consequence to the fraudulent abuse of a statute designed to enable workers to take leave for legitimate family needs and medical reasons."

Sharif v. United Airlines, Inc., 4th Cir., No. 15-1747 (Oct. 31, 2016).

Professional Pointer: HR professionals should pay attention to the circumstances surrounding each FMLA leave request, which could sometimes signal impropriety. For example, here, HR noticed that Sharif's request coincided with the only day he was scheduled to work in the middle of his vacation.

Robert N. Dare is an attorney with Pilchak & Cohen PC, the Worklaw® Network member firm in Auburn Hills, Mich.

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