Masoud Sharif v. United Airlines, Inc., 2016 U.S. App. LEXIS 19549

Background

Plaintiff Masoud Sharif, a United Airlines employee with approved intermittent FMLA leave for an anxiety disorder, took extensive preapproved vacation from March 16–April 4, 2014 but was scheduled to work March 30–31; he found coverage for March 31 only.
On March 30 he called United at 1:00 a.m. EST (7:00 a.m. Cape Town) to claim FMLA leave for a panic attack; he then traveled to Milan and returned days later.
United’s Employee Resource Center noticed that the March 30 FMLA call occurred during his vacation, coincided with his wife’s similar time off, and mirrored a September 2013 incident; HR opened an investigation.
In an April 23 investigatory interview Sharif gave inconsistent accounts, could not produce standby receipts for attempted flights, and was perceived by investigators as dishonest; he was suspended and later told he would be discharged for FMLA fraud and dishonesty; he retired under threat of termination.
Sharif sued for FMLA retaliation (proscriptive § 2615(a)(2)). The district court granted summary judgment for United; the Fourth Circuit affirmed, holding Sharif failed to show pretext for retaliation.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Sharif produced sufficient evidence that his discharge was retaliation for taking FMLA leave	Sharif says his use of FMLA was protected activity and that investigation/termination were motivated by that protected activity	United asserts it discharged Sharif for fraudulently obtaining FMLA leave and for lying during the investigation—legitimate, nondiscriminatory reasons	Held for United: Sharif failed to create a genuine dispute that employer’s explanation was pretextual
Whether investigatory defects and procedural irregularities show pretext	Sharif contends the investigation was cursory and he was denied time to consult his union rep, indicating improper motive	United shows HR reviewed records, interviewed him with a union rep present, and requested documentation; no proof consultation would have changed outcome	Held: Procedural complaints insufficient to create triable pretext issue
Whether historical approval of FMLA leave supports inference of hostility or retaliation	Sharif argues his prior approvals and the Employee Resource Center email show the investigation was triggered by FMLA use	United notes it had approved many FMLA requests and the email merely relayed factual scheduling concerns that justified investigation	Held: Approvals and factual HR communications do not establish retaliatory animus
Whether the severity of discipline (discharge) indicates pretext	Sharif asserts discharge was disproportionate and thus evidence of retaliation	United argues dishonesty and fraudulent misuse of FMLA legitimately warrant termination under its honesty policies	Held: Discharge for fraud and dishonesty is a legitimate response; severity alone does not show pretext

Key Cases Cited

Reeves v. Sanderson Plumbing Prods., 530 U.S. 133 (plaintiff must show employer’s reason was pretextual to survive summary judgment)
McDonnell Douglas Corp. v. Green, 411 U.S. 792 (burden-shifting framework for discrimination/retaliation claims)
Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541 (distinguishing prescriptive FMLA interference claims from proscriptive retaliation claims requiring proof of intent)
Laing v. Fed. Exp. Corp., 703 F.3d 713 (Fourth Circuit discussion of causation and direct evidence in FMLA retaliation context)
Anderson v. Liberty Lobby, Inc., 477 U.S. 242 (summary judgment standard)
Reno v. Bossier Parish Sch. Bd., 520 U.S. 471 (factors for inferring discriminatory intent from historical/background evidence)
Vill. of Arlington Heights v. Metro. Hous. Dev. Corp., 429 U.S. 252 (consideration of departures from normal procedures and contemporaneous statements in intent analysis)
Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274 (employer may treat workplace disability fraud as a serious offense)