Masoud Sharif v. United Airlines, Inc.

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.

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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.

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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)
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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.

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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

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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

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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.

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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

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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

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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.

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 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

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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.

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 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.”

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