Sharif v. United Airlines, Inc.

• Decision Date: 31 October 2016
• Docket Number: No. 15-1747,15-1747
• Citation: 841 F.3d 199
• Parties: 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.
• Court: U.S. Court of Appeals — Fourth Circuit

841 F.3d 199

Masoud Sharif, Plaintiff–Appellant,

v. United Airlines, Inc., Defendant–Appellee,andUnited Continental Holdings, Inc., Defendant.Metropolitan Washington Employment Lawyers Association; National Employment Lawyers Association, Amici Supporting Appellant.

No. 15-1747

United States Court of Appeals, Fourth Circuit.

Argued: September 21, 2016

Decided: October 31, 2016

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.

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.

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, 120 S.Ct. 2097, 147 L.Ed.2d 105 (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 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 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 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 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. 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, 93 S.Ct. 1817, 36 L.Ed.2d 668 (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, 93 S.Ct. 1817. The burden of 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, 101 S.Ct. 1089, 67 L.Ed.2d 207 (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, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ; Burdine, 450 U.S. at 256, 101 S.Ct. 1089 ; McDonnell Douglas, 411 U.S. at 804, 93 S.Ct. 1817. A plaintiff may satisfy...