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4th Circuit Tosses FMLA Suit After Worker Caught Requesting Leave on Vacation

Masoud Sharif v. United Airlines, Inc., et al.
No. 15-1747, (United States Court of Appeals for the Fourth Circuit, October 31, 2016)

by Caroline E. Willsey, Law Clerk
Semmes, Bowen & Semmes (

Available at:

In Sharif v. United Airlines, the Fourth Circuit considered whether the district court erred in granting summary judgment on behalf of United Airlines. The Fourth Circuit concluded that Sharif had failed to create a genuine dispute of material fact that United Airlines' explanation for his discharge was pretextual under the Family and Medical Leave Act (FMLA).

On March 16, 2014, Masoud Sharif and his wife traveled to South Africa on vacation. Both were employed by United Airlines at the time. They had assembled and collected twenty (20) days of time off, which they planned to use from March 16 to April 4. Their time off did not include March 30 to 31 when Sharif was assigned to work customer service in the United Airlines lounge. Sharif found someone to cover his March 31 shift, but was unable to find anyone to cover his March 30 shift.

Because Sharif had a diagnosed anxiety disorder, United Airlines had previously approved his request to take intermittent leave under the FMLA to handle his panic attacks. On March 30, the day of his scheduled shift, Sharif called United Airlines from South Africa to request medical leave under the FMLA.

A United Airlines human resources manager began an investigation after noticing that Sharif had taken FMLA leave for only one shift in the midst of extensive time off. On April 23, 2014, the human resources manager interviewed Sharif to ask about his vacation and the March 30 FMLA request. Sharif had a rapidly changing story – he first denied that he had been scheduled to work on March 30, then denied calling out on FMLA leave, then finally claimed that he had attempted to return home on March 29 flying standby (a common practice for airline employees) but was unable to get a flight. Sharif claimed that his multiple unsuccessful attempts to return home in time for his shift caused him to grow so anxious that he had a panic attack, which ultimately led him to request FMLA leave.

The human resources manager viewed Sharif’s behavior and shifting explanations as evidence of dishonesty. Ultimately, Sharif was notified by senior management of United Airlines’ intent to discharge him for fraudulently taking FMLA leave and for making dishonest representations during the ensuing investigation. Sharif was given a hearing and after the Workers Union told Sharif that he was likely to be fired, Sharif resigned on June 9, 2014.

The FMLA makes it unlawful for any employer to interfere with, restrain, or deny the exercise of any rights provided therein. This provision is prescriptive – a plaintiff seeking redress for employer interference with a substantive FMLA right must only show that he or she was qualified for the right that was denied. The FMLA also makes it unlawful for an employer to retaliate against an employee for opposing the employer’s unlawful practices that violate the FMLA. The second provision is proscriptive – a plaintiff seeking redress for retaliation must prove that (1) he or she engaged in a protected activity, (2) that the employer took adverse action against him or her and (3) that the adverse action was causally connected with the protected activity. Employer intent is relevant to an FMLA retaliation claim.

Sharif argued that United Airlines threatened to terminate his employment for taking FMLA – a violation of the FMLA’s proscriptive provisions – and that any other reason was merely pretextual. United Airlines maintained that Sharif was discharged for fraudulently taking FMLA leave and for being untruthful during the ensuing investigation. The main issue before the Fourth Circuit was whether Sharif produced sufficient evidence of pretext to survive summary judgment.

The Fourth Circuit concluded that, even drawing all reasonable inferences in Sharif’s favor, he failed to produce sufficient evidence for a reasonable fact finder to conclude that United Airlines’ explanation was a pretext for retaliation. The Court reasoned, “[w]hen disciplinary action is based on little evidence of wrongdoing, a genuine issue might exist as to pretext, but the evidence here plainly exceeds that threshold.

Sharif failed to demonstrate that he was engaged in a protected activity. The undisputed evidence shows that Sharif departed for vacation, despite being scheduled to work, and then called in to request FMLA leave twelve (12) hours after the last plane departed that would have allowed him to return home in time for his shift. Sharif also failed to produce receipts from the numerous standby seats he claimed to have purchased in his unsuccessful attempts to return home for his shift.

Sharif also failed to demonstrate that United Airlines had any retaliatory intent. In evaluating employer intent, the trial court may consider the historical background of the decision, the specific sequence of events leading up to the challenged decision, departures from the normal procedural sequence and any contemporary statements by members of the decision-making body. Here, the Court noted that United Airlines had approved every one of Sharif’s prior requests for FMLA leave, which totaled fifty-six (56) days over the course of two (2) years. This was not the record of a company that is historically hostile to FMLA leave. The Court was unpersuaded by Sharif’s claim that the human resources investigation was evidence of pretext, because it would not have been initiated but for his taking FMLA leave on March 30. A factual investigation, without more, is not evidence of discriminatory animus. Sharif also claimed that United Airlines’ investigation was cursory andthat United Airlines’ failure to comply with established investigatory procedure was evidence of pretext. Again the Court disagreed, noting that the key inquiry is whether the employer made a reasonably informed and considered decision before taking the adverse employment action. United Airlines had no obligation to pursue additional investigation when it had ample evidence to establish a reasonably informed conclusion that it had been lied to. Finally, Sharif claims that he would not have been penalized if he had simply skipped his March 30 shift, rather than requesting FMLA leave. In response, the Court stated that it was not in the business of weighing the prudence of employment decisions, but noted that discharge was not disproportionate to the offense of misrepresentation and fraud.

In conclusion, the Court remarked that FMLA rights cannot be fraudulently invoked. The evidence taken as a whole clearly depicted an employee who used FMLA leave to avoid cutting short his vacation, and subsequently gave a series of inconsistent explanations for his behavior. Sharif failed to meet his burden of proving that United Airlines’ explanation for his discharge was pretextual, and therefore, failed to establish a genuine dispute of material fact. Accordingly, the Fourth Circuit affirmed the grant of summary judgment for United Airlines.