United Airlines was within its rights when it decided to fire an employee who it determined had abused his Family and Medical Leave Act (FMLA) leave. He took 1 day of medical leave in the middle of a planned, 20-day vacation, after unsuccessfully trying to get coworkers to cover his shift, court documents show.
The FMLA allows companies to impose consequences when an employee fraudulently abuses a statute designed to enable workers to take leave for legitimate family needs and medical reasons, the court said in Sharif v. United Airlines, Inc., No. 15-1747 (4th Cir. Oct. 31, 2016)).
Background
“Donald” worked for United Airlines in customer service. He requested and was approved for about 20 days of vacation but he did not have vacation to cover two shifts in the middle of that block of time. He posted the shifts on the company’s shift-swap website and found someone to take one.
On the day of the second shift, he called and told the employer he would be using an FMLA day; he had been approved previously for intermittent leave for an anxiety disorder. The employer noticed the odd timing, which was made more suspicious by the fact that Donald’s wife, who also worked at United, also was on vacation.
The Human Resources department launched an investigation and, during an interview, Donald offered varied explanations: he wasn’t scheduled to work that day; he didn’t remember calling out sick; and he tried to fly home standby but couldn’t get on a flight, which caused a panic attack that necessitated the FMLA leave. United asked to see the receipts from the standby tickets he purchased but he failed to produce them.
After concluding the investigation, United informed him that he was going to be fired for fraudulently taking FMLA leave and lying during an investigation, in violation of company policy. At his union’s recommendation, he resigned.
Donald then sued, alleging that the termination threat was retaliation for taking FMLA leave, in violation of the law. A federal district court dismissed his claims and Donald appealed.
Appeals Court Weighs In
On appeal, Donald argued that he should have been allowed to proceed with his claims because he had produced enough evidence for a reasonable jury to conclude that he was fired for taking FMLA leave. He said he didn’t know about the employer’s investigation and was caught off guard during the surprise “interrogation.” He merely couldn’t remember the events of a day several weeks earlier and, when he was put on the spot, had a panic attack.
The court, however, said that Donald’s story still had problems even after he was given time to compose himself and offer a written response. “In short, Donald 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 Donald did not want to interrupt his … vacation to come back for one day of work.”
The court also noted that there was no evidence that United didn’t want Donald taking FMLA leave. It had previously approved every one of his leave requests, even when he used the leave under similar circumstances a year earlier.
“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,” the court said; instead, the 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.”
Donald argued that he would not have been investigated and ultimately fired but for taking FMLA leave. If he had merely skipped his shift, he would have been penalized, but not fired, he said. The court, however, said it was unpersuaded.
Donald was investigated and discharged for fraudulently taking FMLA leave, and for making dishonest representations during the ensuing investigation. “It is inconsequential that missing work without providing notice normally merits a lesser penalty because those employees do not violate the honesty component of [the employer’s policy],” the court said.
“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,” the 4th Circuit said, upholding summary judgment for United.
Employer Takeaway
Donald’s argument that he wouldn’t have been fired but for his taking FMLA leave isn’t a new one—but it’s not one that has had much success either.
Courts of appeal have had several opportunities to address that issue in cases involving misconduct discovered because of FMLA leave. Most recently, the 10th Circuit held in August that a warehouse manager for Penske had no FMLA interference claim when he was fired because his temporary replacement found that he had been hiding inventory loses and lying about it.
The fact that the misconduct wouldn’t have been discovered if he didn’t take leave did not protect him from discipline, the court said (Olson v. Penske Logistics, LLC, No. 15-1380 (10th Cir. Aug. 26, 2016)).
The FMLA does not protect an employee from adverse employment actions; rather, it protects an employee from adverse employment actions taken because he or she exercised FMLA rights. While employers must ensure that discipline is not implemented in retaliation for an employee’s leave or leave request, these rulings are clear: just because discipline wouldn’t have been implemented but for the leave, doesn’t mean that the resulting discipline was implemented because of the leave.