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Using FMLA to play hooky leads to termination

November 11, 2016

By Anthony Kaylin, courtesy of SBAM Approved Partner ASE

FMLA is a law that requires strict adherence.  Any variation of the application of the law could lead to liability, including personal liability for the person making the wrong decision in an FMLA case.  One of the more difficult issues, especially, is how to deal with employees who push the limit of the law and dare the employer to fire them.   Thankfully the law also has protections for the employer that can be relied on in these situations.

In the case of Masoud Sharif v. United Airlines, Incorporated, No. 15-1747 (4th Circuit Court of Appeals, October 31, 2016), Sharif began working for United in 1990 as a Reservation Representative and remained employed there for the next 24 years. In 2004, Sharif was promoted to the position of Service Director.  Besides an incident in 2009, United had “consistently issued Sharif positive performance evaluations.”

Sharif is originally from Iran.  In 1979 during the Islamic Revolution, Sharif was imprisoned and tortured by Iranian police.  As a result of his trauma he suffers from anxiety attacks. Around 2009, Sharif requested intermittent Family Medical Leave Act (FMLA) leave as necessary to manage his anxiety. United approved his request, allowing him to take leave once a month for one to five days as necessary. To exercise this leave, United required Sharif to call and provide his dates of absence and FMLA case number.  United approved 56 days of leave for 2 years prior to this situation.

In March 2014, Sharif and his wife took a vacation to South Africa, which was approved by United. He was scheduled to return to work on March 30, 2014. As United employees, the Sharifs took advantage of standby airline tickets for the trip. However, allegedly because of an International Jazz Festival going on in Capetown and a strike at one of the major airlines, the Sharifs were unable to obtain standby or full fare tickets back to the United States. Realizing that he would miss his work shift, Sharif suffered an anxiety attack. He then called United to inform them he needed to take FMLA leave and would not report to work on the 30th.

As it turns out, March 30th was the only day not covered by his vacation time.  A senior coordinator at the airport Sharif worked noticed that this situation occurred once before in 2013.  As a result, Sharif was called into a meeting with his Area Manager, HR Manager and union representative to discuss the situation.  Sharif allegedly had a panic attack and answered questions wrongly.   As a result, he was walked off premises and suspended pending investigation.

Three weeks later, on May 15, 2014, United sent Sharif a letter notifying him that it was terminating his employment “effective today” because it had concluded that he had violated its honesty policy and “fraudulently claimed an FMLA qualifying illness” to excuse his absence on March 30, 2014.  Sharif was afforded a hearing on the termination, as a union employee, and at the hearing he was offered to be allowed to retire in lieu of termination.  Sharif ended up retiring.

Sharif then filed a lawsuit against United alleging retaliation for requesting FMLA leave among other things.  To prove his case of retaliation, Sharif had to show that: (1) he engaged in protected activity; (2) United took adverse action against him; and (3) a causal connection existed between the protected activity and the adverse action. 

At a motion for summary judgement, the trial court ruled that Sharif showed that requesting FMLA is a protected activity.  However, the trial court found that United’s reason for termination (violation of its honesty policy) was legitimate and reasonable.  As it turns out, both Sharif and his wife, who also works for United, attempted to rearrange their work calendars so that they would have off of work from March 16th through April 4th, which would have the effect of extending their vacation.

On appeal, the Fourth Circuit Court of Appeals upheld the summary judgement and termination saying that Sharif shouldn’t have claimed a day off under the statute since it appeared that he was using it to continue his three-week vacation, rather than as time off for an anxiety disorder. As the court noted, Sharif called in for FMLA leave 12 hours after the last plane departed that would allow him to return before his scheduled shift and at a time when no one was working at the office. 

The takeaway for HR is when suspicious behavior is identified in the usage of FMLA leave, it should be investigated.  If it is found that the FMLA was fraudulently used, the employer should not hesitate to terminate the employee.

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