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Fourth Circuit Affirms Denial of Plaintiff's FMLA Claim Based on Misrepresentation

Fourth Circuit Affirms Denial of Plaintiff’s FMLA Claim Based on Misrepresentation

In Sharif v. United Airlines, Inc. (4th Cir., No. 15-1747, October 31, 2016), the Fourth Circuit affirmed the district court’s summary judgment in favor of the employer on the basis of the employer’s finding that Sharif had fraudulently obtained FMLA leave.  Sharif and his wife were both employees of United Airlines at Dulles Airport and had accrued 20 days’ leave during which they were going to travel to South Africa. Sharif’s wife’s schedule was clear. However, Sharif was scheduled to work on 2 days during that period, although he was able to secure coverage from another employee for one of those days before leaving.  Sharif had been diagnosed with an anxiety disorder five years earlier and had been approved for intermittent FMLA leave.

On March 30, 2014, the day of his remaining scheduled shift, Sharif called United at 1:00 a.m. Eastern Time to take medical leave under the FMLA. Sharif and his wife ultimately returned a few days later on April 4 in time for Sharif’s wife’s next scheduled shift. United’s Employee Resource Center at the airport noticed that Sharif had taken leave on his only scheduled day to work over a 3-week period and notified Human Resources, and an investigation began. The Employee Resource Center also notified Human Resources that Sharif had utilized FMLA under similar circumstances the previous year.

Upon interviewing Sharif, he first replied that he was not scheduled on March 30 and when asked why he would call in for leave if he was not scheduled, he responded that he did not recall having called in sick. He then stated that he had arrived at the airport in South Africa with a stand-by ticket, but was unable to secure a seat on a return flight. (He was unable to provide any documentation of the stand-by ticket). He then claimed that the difficulties he was experiencing in obtaining a return flight resulted in a panic attack for which he called and requested leave. He attributed his failures in recollection to the panic attack he suffered on that day in addition to the anxiety he was facing in the interview. Sharif was then advised that he was going to be terminated for dishonesty and was provided a disciplinary hearing. After being advised that he was likely facing termination, Sharif’s union advised him to resign, which he did.

In arguing his constructive discharge was in retaliation for taking FMLA leave, Sharif argued that he would not have been investigated and discharged but for his taking FMLA leave. On the contrary, the court held that the investigation itself was straightforward and did not show evidence of discriminatory animus. The court further pointed out that the scope of the investigation was reasonable and that United had no obligation to pursue additional investigation once it had reached an informed decision that Sharif had not been truthful and in any event the failure to comply with established investigatory procedures was not sufficient to establish pretext. Sharif also argued that termination was too severe a penalty, but the court declined to weigh the merits of that argument or second-guess the employer’s decision, noting further that discharge is not a disproportionate penalty for workplace fraud.  Relying upon the FMLA’s implementing regulations that an employee who fraudulently obtains FMLA leave is not protected by the Act’s provisions, the court concluded that the evidence plainly painted a picture of an employee who used FMLA to avoid interrupting his vacation and then gave a variety of inconsistent explanations upon his return. As a result, the court found Sharif had failed to meet his burden of showing United’s reasons for his discharge were pretextual and failed to establish a genuine issue of material fact.

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