Our myriad federal and state discrimination laws offer a determined employee many routes through which to pursue an award from his or her employer. All of these options present a problem when a disgruntled former employee decides that a frivolous claim might offer an easy way to reap a financial benefit. Courts recently have been less willing, however, to accept employees allegations and more often are siding with employers in cases alleging retaliation under the Family and Medical Leave Act (FMLA). Most recently, the Fourth Circuit Court of Appeals, in Sharif v. United Airlines, Inc., upheld a lower courts grant of summary judgment in favor of the defendant airline on the plaintiffs FMLA retaliation claim. While the facts of Sharif are somewhat unique, they actually have popped up more often in recent years as more and more employers have highly mobile workforces.
Sharif was a United Airlines employee who had been approved for intermittent FMLA leave due to an anxiety condition. In the middle of the night before a scheduled shift, Sharif called to say he would not be able to work. His call initially was accepted and recorded as an FMLA-qualifying absence. His call raised a red flag, however, because it was his only shift for which he was scheduled among 21 days he was scheduled off. Interestingly, this time period coincided with the time off scheduled by his wife, who also worked for the airline. As it turned out, at the time he called off, they were in South Africa on an extended vacation.
Once alerted, the employer conducted an investigation, which included obtaining a statement from Sharif, allowing that he have union support in doing so. Sharif claimed that he suffered a panic attack which caused him to call in while in the midst of searching for a return flight. Disbelieving his response, the employer terminated him for abusing its FMLA and leave policies. Further investigation revealed that when he allegedly suffered his panic attack, he already had missed the last flight that would have gotten him back on time, and that he had not attempted to schedule travel in order to get back to work.
While these facts are intriguing enough on their own, an interesting legal issue also arose in the form of the honest belief analysis employed by the trial court. Such a defense requires an employer show it made a well-reasoned decision based on an honest belief regarding its action, and if such a showing is made the employer may avoid liability. In response to the trial courts use of this method of analysis, two organizations made up of attorneys who represent employees in employment law actions filed amicus briefs in the appeal, asserting that by basing an analysis on the employers honest belief, the court was making a finding on credibility that should have been left to the jury as the ultimate finder of fact.
On appeal, the Fourth Circuit Court of Appeals chose not to address the honest belief analysis. Instead, the Court found it was perfectly reasonable that the employer concluded the employee did not wish to interrupt his vacation and so had called in claiming that his disability prevented him from working. The fact that he could not have returned at that time, coupled with the overall extreme nature of the facts, likely made this case a bit of an outlier. Even so, it joins a growing number of cases in which courts have denied FMLA retaliation claims where the evidence indicates that the employee actually had abused the FMLA policy and the employer discovered such abuse after an investigation.
It is important to recognize that where employees are abusing leave policies, courts are showing some reluctance to entertain claims of FMLA retaliation. Employers should consider, however, whether these same courts would have been as persuaded had the plaintiff pursued some other theory of discrimination instead of, or in addition to, FMLA retaliation.
The St. Louis employment attorneys at McMahon Berger have been representing employers across the country in labor and employment matters, including FMLA issues and retaliation claims, for almost sixty years, and are available to discuss these issues and others. As always, the foregoing is for informational purposes only and does not constitute legal advice regarding any particular situation as every situation must be evaluated on its own facts. The choice of a lawyer is an important decision and should not be based solely on advertisements.
