Filed: Oct. 31, 2016
Latest Update: Mar. 03, 2020
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1747 MASOUD SHARIF, Plaintiff - Appellant, v. UNITED AIRLINES, INC., Defendant - Appellee, and UNITED CONTINENTAL HOLDINGS, INC. Defendant. - METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, Amici Supporting Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:14-cv-01294-LO-IDD) Argued: Sep
Summary: PUBLISHED UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT No. 15-1747 MASOUD SHARIF, Plaintiff - Appellant, v. UNITED AIRLINES, INC., Defendant - Appellee, and UNITED CONTINENTAL HOLDINGS, INC. Defendant. - METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION; NATIONAL EMPLOYMENT LAWYERS ASSOCIATION, Amici Supporting Appellant. Appeal from the United States District Court for the Eastern District of Virginia, at Alexandria. Liam O’Grady, District Judge. (1:14-cv-01294-LO-IDD) Argued: Sept..
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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 15-1747
MASOUD SHARIF,
Plaintiff - Appellant,
v.
UNITED AIRLINES, INC.,
Defendant - Appellee,
and
UNITED CONTINENTAL HOLDINGS, INC.
Defendant.
------------------------------
METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION;
NATIONAL EMPLOYMENT LAWYERS ASSOCIATION,
Amici Supporting Appellant.
Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria. Liam O’Grady, District
Judge. (1:14-cv-01294-LO-IDD)
Argued: September 21, 2016 Decided: October 31, 2016
Before WILKINSON and FLOYD, Circuit Judges, and IRENE M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge Floyd and Judge Keeley joined.
ARGUED: Robert Scott Oswald, THE EMPLOYMENT LAW GROUP, P.C.,
Washington, D.C., for Appellant. Hugh Scott Johnson, Jr., PCT
LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. Stephen Z.
Chertkof, HELLER, HURON, CHERTKOF & SALZMAN, PLLC, Washington,
D.C., for Amici Curiae. ON BRIEF: Andrea M. Downing, THE
EMPLOYMENT LAW GROUP, P.C., Washington, D.C.; Richard T.
Seymour, LAW OFFICE OF RICHARD T. SEYMOUR, P.L.L.C., Washington,
D.C., for Appellant. Angela H. France, PCT LAW GROUP, PLLC,
Alexandria, Virginia, for Appellee. Erik D. Snyder, LAW OFFICES
OF ERIK D. SNYDER, Washington, D.C.; Alan R. Kabat, BERNABEI &
WACHTEL, PLLC, Washington, D.C.; Matthew C. Koski, NATIONAL
EMPLOYMENT LAWYERS ASSOCIATION, Oakland, California, for Amici
Curiae.
2
WILKINSON, Circuit Judge:
Appellant Masoud Sharif brought suit against United
Airlines, Inc., for retaliation under the Family and Medical
Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq. (2012). The
district court entered summary judgment on behalf of United
Airlines and dismissed Sharif’s claim. Even drawing all
reasonable inferences in favor of Sharif as the nonmoving party,
Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51
(2000), Sharif has failed to create an issue of triable fact
that the explanation United Airlines provided for his discharge
was a pretext for retaliation for taking FMLA leave. To hold
otherwise 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.
I.
On March 16, 2014, Sharif and his wife travelled on
vacation to Johannesburg and Cape Town, South Africa. Each was
employed by United Airlines at Dulles Airport and had assembled
roughly twenty days of time off from March 16 to April 4. 1 Their
1 Sharif successfully bid for vacation leave on March 16-17,
March 19-20, March 23-24, and March 26-27. United Airlines
approved his request for personal holiday leave on April 2-3.
Sharif’s regular days off were scheduled for March 18, 21-22,
25, 28-29, April 1, and 4-5. In sum, he was not scheduled to
(Continued)
3
time off did not include, however, a short two-day period from
March 30 to 31 when Sharif was assigned to customer service work
in the United Airlines lounge. Sharif placed his schedule on the
United Airlines shift-swap website, and successfully found
someone to cover his March 31 shift. He was unable, however, to
find anyone to cover his March 30 shift.
Sharif had been diagnosed with an anxiety disorder in 2009,
and United Airlines had approved his request to take
intermittent leave under the FMLA to handle panic attacks. 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.
The United Airlines Employee Resource Center at Dulles
Airport noticed that Sharif had taken FMLA leave for the only
shift he was scheduled to work in the midst of his extensive
time off and notified Kenneth Martin in Human Resources. The
work from March 16 to April 5, except for shifts on March 30
and 31. Similarly, Sharif’s wife arranged to have time off from
March 16 to April 4.
4
Employee Resource Center also notified Martin that Sharif’s time
off coincided with his wife’s schedule except for March 30, and
that Sharif had taken FMLA leave under similar circumstances in
September 2013. Martin consequently began an investigation of
Sharif’s FMLA claim.
On April 23, 2014, Martin interviewed Sharif. Jon Connor,
the United Airlines Area Manager, Elizabeth Tranium, Sharif’s
supervisor, and a representative from the International
Association of Machinists and Aerospace Workers (“Workers
Union”) were also 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.” J.A. 344-45.
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
due to an international jazz festival in Cape Town and an
impending pilot strike on Lufthansa. 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
5
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. He could not remember if he or his wife had
called United Airlines.
Martin and Connor both viewed Sharif’s behavior and
shifting explanations as evidence of dishonesty. Martin
circulated an email to United Airlines senior management
explaining that “[w]hen we questioned [Sharif], he was not
truthful and told us initially that he didn’t have to work that
day. He then changed his story many times. He had no intentions
of being at IAD [Dulles] that day.” J.A. 376. Sharif was
subsequently suspended without pay, pending further
investigation.
United Airlines ultimately notified Sharif of its intention
to discharge him for fraudulently taking FMLA leave and for
making dishonest representations during the ensuing
investigation. Such conduct was a violation of the United
Airlines Working Together Guidelines, which clearly require that
all employees “[b]e truthful in all communications, whether
oral, written or electronic.” J.A. 264. Sharif was given a
hearing on June 5, 2014, after which the Workers Union told
6
Sharif he was likely to be fired and recommended that he retire.
Sharif retired under threat of termination on June 9, 2014.
II.
Congress enacted the FMLA to “balance the demands of the
workplace with the needs of families” and “to entitle employees
to take reasonable leave for medical reasons.” 29 U.S.C.
§ 2601(b)(1),(2) (2012). In relevant part, Congress recognized
that “there is inadequate job security for employees who have
serious health conditions that prevent them from working for
temporary periods.” Id. § 2601(a)(4). Congress thus required
employers to accommodate a limited amount of “intermittent”
leave “when medically necessary” as certified by a health care
provider.
Id. §§ 2612(b), 2613; 29 C.F.R. §§ 825.202-05,
825.305-08 (2016) (defining requirements for intermittent
leave). Congress intended the FMLA to accomplish these purposes
“in a manner that accommodates the legitimate interests of
employers.” 29 U.S.C. § 2601(b)(3).
The FMLA provides that “[i]t shall be unlawful for any
employer to interfere with, restrain, or deny the exercise of or
the attempt to exercise, any right provided under this
subchapter.” Id. § 2615(a)(1). The substantive rights guaranteed
by the FMLA are prescriptive, and a plaintiff seeking redress
for employer interference with an entitlement is only required
to show that he or she qualified for the right that was denied.
7
Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 546 (4th
Cir. 2006).
The FMLA also provides that “[i]t shall be unlawful for any
employer to discharge or in any manner discriminate against any
individual for opposing any practice made unlawful by this
subchapter.” 29 U.S.C. § 2615(a)(2). This limitation on
employers is proscriptive. Yashenko, 446 F.3d at 546. To succeed
on a claim of retaliation, a plaintiff must show “that he
engaged in protected activity, that the employer took adverse
action against him, and that the adverse action was causally
connected to the plaintiff’s protected activity.”
Id. at 551
(quoting Cline v. Wal-Mart Stores, Inc.,
144 F.3d 294, 301 (4th
Cir. 1998)). Unlike prescriptive entitlement or interference
claims, employer intent here is relevant. Hodgens v. Gen.
Dynamics Corp.,
144 F.3d 151, 160 (1st Cir. 1998); Rice v.
Sunrise Express, Inc.,
209 F.3d 1008, 1017 (7th Cir. 2000).
Intent can be established either by direct evidence of
retaliation or through the familiar burden shifting framework
articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792,
800–06 (1973). Laing v. Fed. Exp. Corp.,
703 F.3d 713, 717 (4th
Cir. 2013);
Yashenko, 446 F.3d at 551. Under the latter
framework, a plaintiff must first produce sufficient evidence to
establish a prima facie case that the elements of retaliation
are satisfied. McDonnell
Douglas, 411 U.S. at 802. The burden of
8
production then shifts to the employer to rebut the prima facie
presumption of retaliation and provide “some legitimate,
nondiscriminatory reason” for the adverse employment action.
Id.; see Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,
253-55 (1981). If the employer meets this burden, the
presumption of retaliation is dissolved and the plaintiff
resumes the burden of persuading the factfinder that the
employer’s proffered explanation is merely a pretext for
discrimination. St. Mary’s Honor Ctr. v. Hicks,
509 U.S. 502,
510-11 (1993);
Burdine, 450 U.S. at 256; McDonnell
Douglas, 411
U.S. at 804. A plaintiff may satisfy this burden by showing
either that the employer’s explanation is not credible, or that
the employer’s decision was more likely the result of
retaliation.
Reeves, 530 U.S. at 143;
Burdine, 450 U.S. at 256.
In any event, the plaintiff must produce sufficient evidence to
create a genuine dispute of material fact such that a reasonable
factfinder could conclude the adverse employment action was
taken for an impermissible reason, i.e., retaliation.
Reeves,
530 U.S. at 143, 148-49;
Hicks, 509 U.S. at 510-11;
Burdine, 450
U.S. at 253.
Sharif argues that United Airlines threatened to terminate
his employment in retaliation for taking FMLA leave, a violation
of the proscriptive provisions in 29 U.S.C. § 2615(a)(2). Sharif
contends that he produced sufficient evidence for a reasonable
9
jury to conclude that his use of FMLA leave was a protected
activity and that he was constructively discharged as a result.
United Airlines maintains that Sharif was discharged not only
for fraudulently taking FMLA leave but also for being untruthful
during the ensuing investigation in violation of the Working
Together Guidelines. The main issue on appeal is whether Sharif
has produced sufficient evidence of pretext to survive summary
judgment.
III.
The summary judgment standard requires that “the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,
248 (1986); see FED. R. CIV. P. 56(a) (2016). Even drawing all
reasonable inferences in Sharif’s favor,
Reeves, 530 U.S. at
150-51, he fails to meet this burden. Sharif fails to produce
sufficient evidence for a reasonable factfinder to conclude that
United Airlines’ explanation was a pretext for retaliation. He
cannot rely upon “mere speculation or the building of one
inference upon another” to establish that he was fired in
retaliation for taking FMLA leave. Othentec Ltd. v. Phelan,
526
F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy,
769 F.2d
213, 214 (4th Cir. 1985)). When disciplinary action is “based on
little evidence of wrongdoing, a genuine issue might exist as to
10
pretext,” but the evidence here plainly exceeds that threshold.
See Laing, 703 F.3d at 722.
A.
Sharif claims that he travelled to South Africa with the
intention of returning in time for his March 30 shift, but that
he was unable to obtain a return flight despite persistent
efforts beginning on March 28. He contends that a prominent
international jazz festival, coupled with an impending pilot
strike on Lufthansa, made it impossible to find any available
seats on any airline returning to Washington. The pressure to
find a flight and the prospect of missing work continued to
build until Sharif suffered a panic attack and called United
Airlines to take FMLA leave. Once the panic attack subsided,
Sharif found a flight to Milan where his niece lived so that he
and his wife would have a place to stay while they continued
their attempt to return home.
Sharif then explains that he was unaware of the company
investigation concerning his March 30 absence until he was
spontaneously questioned on April 23. Sharif says he was unable
to immediately recall the events of a specific day weeks earlier
and thus could not immediately and accurately recount what
happened. The situation was further complicated by the onset of
another panic attack during what he describes as tantamount to
an interrogation. However, Sharif provided the foregoing
11
explanation once he was given the opportunity to compose himself
and write a response.
This 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. It is undisputed that he
then visited his niece in Milan, and returned to Washington just
in time for his wife’s next shift. When Sharif was later
questioned about his use of FMLA leave, he first denied even
being scheduled to work, and then provided a constantly changing
story about his attempt to return home. United Airlines
requested receipts from the standby seats Sharif claimed to
purchase in his unsuccessful attempts to find a flight, but
Sharif failed to produce them. In short, Sharif provided the
company with no evidence to support his claim aside from his own
shifting statements. It seems perfectly logical for United
Airlines to conclude that Sharif did not want to interrupt his
Cape Town vacation to come back for one day of work.
12
B.
In evaluating employer intent and the question of pretext,
the district court may consider “among other things, the
historical background of the . . . decision; [t]he specific
sequence of events leading up to the challenged decision;
[d]epartures from the normal procedural sequence; and . . .
[any] contemporary statements by members of the decisionmaking
body.” See Reno v. Bossier Parish Sch. Bd., 520 U.S. 471, 489
(1997) (quoting Vill. of Arlington Heights v. Metro. Hous. Dev.
Corp.,
429 U.S. 252, 267-68 (1977)) (discussing factors that
might indicate discriminatory intent). We initially note that
United Airlines approved every one of Sharif’s requests for FMLA
leave. These requests totaled 56 days in the two years prior to
his discharge and include FMLA leave after March 30. While
United Airlines cannot retaliate against someone for exercising
their rights under the FMLA, this is not the record of a company
that is historically hostile to FMLA leave in any discernable
way.
Sharif claims that the notification Martin received from
the Employee Resource Center which triggered United Airlines’
investigation is actually direct evidence of retaliation. The
email laid out how Sharif had taken FMLA leave for the only
shift he was scheduled to work in the midst of his extensive
time off, that his schedule coincided with his wife’s time off
13
except for his shift on March 30, and that Sharif had taken FMLA
leave under similar circumstances in September 2013. At a
minimum, Sharif argues, this is evidence of pretext because he
would not have been investigated and ultimately discharged but
for taking FMLA leave.
We are unpersuaded. To begin with, the email from the
Employee Resource Center relayed to Martin straightforward
factual information, and such factual communication between
human resources personnel is not, without more, evidence of
discriminatory animus. Sharif also fails to understand that
direct evidence must demonstrate that an adverse employment
action was actually “due to . . . FMLA leave as opposed to some
other lawful reason.” Laing, 703 F.3d at 718 n.1; see also
Stallings v. Hussmann Corp.,
447 F.3d 1041, 1051 (8th Cir.2006)
(explaining that termination for “calling in FMLA for non-FMLA
reasons” is not direct evidence of retaliation). Contrary to
Sharif’s contention, the proffered evidence suggests the same
nondiscriminatory motivation that United Airlines has repeatedly
advanced. Sharif was investigated and subsequently discharged
for fraudulently taking FMLA leave, and then for making
dishonest representations during the ensuing investigation in
violation of the Working Together Guidelines. Unlike Sharif’s
shifting narrative, the company’s explanation for its action has
remained a consistent one.
14
Sharif then claims that United Airlines’ investigation was
cursory and that failure to comply with established
investigatory procedure is evidence of pretext. In response,
United Airlines catalogues how it reviewed Sharif’s work
calendar, the time and place of his phone call to take FMLA
leave, United Airlines flight records and whether Sharif had
made any seat reservations. United Airlines also afforded Sharif
the opportunity both to present his version of events and to
prepare a written account with the subsequent assistance of a
Workers Union representative, and finally requested that Sharif
provide any documentation such as standby receipts that might
support his story. Sharif retorts that United Airlines failed to
properly verify his version of events by researching the
validity of his anxiety disorder and independently checking seat
availability on other airlines flying out of Cape Town prior to
March 30. He also argues that, above all, he was denied “a
reasonable opportunity to consult” with his Workers Union
representative before first meeting with Martin as required by
the governing Collective Bargaining Agreement. See J.A. 254.
Although Sharif faults United Airlines for not conducting a
more thorough investigation, “the key inquiry is whether the
employer made a reasonably informed and considered decision
before taking an adverse employment action.” Smith v. Chrysler
Corp., 155 F.3d 799, 807 (6th Cir. 1998). United Airlines had no
15
obligation to pursue additional investigation when it had more
than ample reason to believe it had been lied to. And while
failure to comply with established investigatory procedures
might indeed be evidence of improper motive, Arlington Heights,
429 U.S. at 267, it is not per se sufficient to create a genuine
dispute as to pretext. A Workers Union representative was
present at Sharif’s meeting with Martin. Neither Sharif nor the
Workers Union representative requested an opportunity to consult
with one another, and Sharif fails to allege what difference a
consultation would have made.
Finally, Sharif contends that, while he would have been
penalized for simply skipping his March 30 shift, he would not
have been discharged. He claims that the severity of the
consequence he received is evidence of pretext. However, courts
are not “a kind of super-personnel department weighing the
prudence of employment decisions.” DeJarnette v. Corning, Inc.,
133 F.3d 293, 299 (4th Cir. 1998). Discharge is not
disproportionate to the offense of misrepresentation and fraud.
As the Sixth Circuit has explained, an employer can “rightfully
consider[] workplace disability fraud to be a serious issue.”
See Seeger v. Cincinnati Bell Tel. Co.,
681 F.3d 274, 284 (6th
Cir. 2012). It is inconsequential that missing work without
providing notice normally merits a lesser penalty because those
16
employees do not violate the honesty component of the Working
Together Guidelines.
C.
The FMLA serves the important purpose of allowing employees
to take leave for legitimate family needs and medical reasons,
but it is not a right that can be fraudulently invoked.
Dishonest representations may carry additional risks in an
airline charged with meeting large volume public demands and
providing safe and efficient transportation services. These
goals require predictable policies that ensure to the extent
possible and consistent with the FMLA that proper personnel will
be on duty. While a company may not deny valid requests for
leave, and an employer cannot use allegations of dishonesty as a
pretext for subsequent retaliation, it is equally important to
prevent the FMLA from being abused. As the Department of Labor
explains, “[a]n employee who fraudulently obtains FMLA leave
from an employer is not protected by FMLA’s . . . provisions.”
29 C.F.R. § 825.216(d).
So it is here. 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.
Sharif fails to meet his burden of showing that United Airlines’
explanation for his discharge was pretextual, and therefore
17
fails to establish a genuine dispute of material fact suitable
for trial. 2
IV.
For the foregoing reasons, the judgment of the district
court is
AFFIRMED.
2 The district court discussed, and the parties argued
extensively, the application of a so-called “honest belief rule”
that would require plaintiffs to show that their employers’
nondiscriminatory motivation was not sincerely held. See Sharif
v. United Airlines, Inc., No. 1:14-CV-1294, 2015 WL 4042173, at
*6-7 (E.D. Va. July 1, 2015). We think the issues in this case
are most profitably addressed through the well-established proof
scheme of McDonnell Douglas and its progeny. Accordingly, we see
no reason to address the “honest belief rule.”
18
