Tag Archives: FMLA

Favorite Firing: Discharge for Dishonesty Is Not FMLA Retaliation


FMLA DOL.pngWhen the Family and Medical Leave Act became law in 1993, it immediately changed the relationship between managers and employees. It became much harder to discipline employees for attendance, if their absences were even arguably covered by the FMLA. But a recent case demonstrates that if an employee lies about his or her need for FMLA leave, then discharge for the dishonesty is appropriate. See Sharif v. United Airlines, Inc., No. 15-1747 (4th Cir. Oct. 31, 2016).

The Facts: Masoud Sharif, an employee of United Airlines in the U.S., had suffered from a diagnosed anxiety disorder for several years, and he was frequently absent from work due to panic attacks. For many years, United Airlines approved his requests for FMLA leave. In fact, in the two years prior to his discharge, Mr. Sharif took 56 days of approved FMLA leave.

Mr. Sharif and his wife (also a United employee) went on a three-week vacation to South Africa in 2014. He used time-off days for most of the time, but not for two days in the middle of the scheduled absence. He tried to swap shifts for those two days within United’s swap policy. He found someone to cover one shift, but not the other. While still in South Africa on the day that his absence was not covered, he called to request FMLA leave for that shift. (He did not call to request the leave until it was too late to fly back to the U.S. from South Africa, and he had no airline reservation back to the U.S.)

The Sharifs returned to the U.S. in time for Mrs. Sharif’s first scheduled shift after the irvacation. United then noticed that Mr. Sharif had only requested FMLA leave for the one shift he was scheduled to work during his vacation. Mr. Sharif had similarly taken FMLA leave during a planned absence in 2013. Therefore, United decided to investigate.

When United managers questioned him, Mr. Sharif first claimed he was not scheduled to work on the day in question, but he did not explain why he requested FMLA leave for that day. He gave inconsistent and implausible statements about trying to fly home from South Africa, then claimed he suffered a panic attack over his inability to return home, which is why he requested FMLA leave.

United determined that Mr. Sharif had been dishonest in his request for leave and during their investigation. Dishonesty was a violation of the United “Working Together Guidelines.” The airline suspended him without pay. United was prepared to discharge him for fraudulently taking FMLA leave and for making false representations during the investigation. On the recommendation of his union, Mr. Sharif retired, so he would not be terminated.

Mr. Sharif later filed suit alleging the threat of termination constituted retaliation for taking FMLA leave. The district court granted United’s motion for summary judgment, and the Fourth Circuit affirmed. The Fourth Circuit held that termination of employment for abusing FMLA leave and for lying during an investigation into the FMLA abuse is not retaliation under the FMLA.

The Moral: This is another case where an observer wonders what the employee was thinking. Several of Mr. Sharif’s statements were easy to refute based on airline schedules. The whole situation—leaving one day uncovered in the middle of an international vacation, then requesting FMLA leave on that day—would raise the specter of employee dishonesty in any objective mind. Common sense should prevail in a case like this, and fortunately it did.

As the Fourth Circuit held,

“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.” [emphasis added]

In its decision, the Fourth Circuit provided guidance for determining whether FMLA retaliation has occurred, when the circumstances surrounding the request for leave or the leave itself triggers an investigation and adverse action. The Fourth Circuit stated that an employer’s retaliatory 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).”

The well-known McDonnell Douglas analysis requires the employee to establish a prima facie case of retaliation. If the employer then rebuts the prima facie case with a legitimate, nondiscriminatory reason for the adverse action, the employee then has the burden to prove that the proffered explanation is pretextual.

The Fourth Circuit explained that both pretext and employer intent can be demonstrating by considering

“ ‘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)).”

The Fourth Circuit went through these factors and found that United’s past acceptance of Mr. Sharif’s FMLA claims, Mr. Sharif’s inconsistent explanations, the timing of his and his wife’s vacations, and the lack of any attempts to make return reservations so he could work the shift, all demonstrated that United did not retaliate.

Mr. Sharif also claimed that he should have received lesser discipline for not working the shift. However, the Fourth Circuit cited the frequently quoted words supporting court decisions in support of employers:

“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).”

Because Mr. Sharif’s offense amounted to “misrepresentation and fraud,” the Fourth Circuit found that discharge was appropriate, thus establishing that there are at least some occasions in which an employer can still manage attendance.

Have you ever dealt with suspected FMLA misrepresentations? What was the outcome?

Leave a comment

Filed under Human Resources, Law, Management, Workplace

Favorite Firing: When Employees Behave Badly . . . And Mental Illness Is Suspected


Photo by David Castillo Dominici. Published on 08 September 2014 Stock Photo - Image ID: 100286443. Freedigitalphotos.net

Photo by David Castillo Dominici. Published on 08 September 2014
Stock Photo – Image ID: 100286443. Freedigitalphotos.net

On a handful of occasions during my career, I had to deal with employees who were mentally ill. Several employees were depressed, and these situations could generally be worked through over time. But one individual had agoraphobia and wouldn’t leave his house, though his job required him to call on customers. Two others had schizophrenia, and their communications were difficult to understand and their workplace behaviors were bizarre. These were the more difficult situations. This month, I’m writing my “Favorite Firing” on one particular case of schizophrenia.

The Facts: “Sabrina” (not her real name) worked in an office environment, in a room where about ten employees worked. She had worked for the company for around twenty years. For most of her employment, her performance was adequate, though her behavior toward coworkers tended to be a little quirky. She didn’t have any friends among her colleagues, but they all got their jobs done.

As a Human Resources director, I became aware of Sabrina’s situation when her managers began complaining that she was accusing coworkers and managers of following her around. The managers denied that anyone was doing anything inappropriate toward Sabrina. Despite several conversations, Sabrina continued to accuse people of following her.

Then she began following others. To the rest room. To other departments. Her coworkers got freaked out. Sabrina was told not to follow anyone. She said she had to, because they were spying on her.

Sabrina was placed on a leave of absence and told to see her physician about her behavior. This was a risky move on the employer’s part, but workplace counseling was not getting through to Sabrina. While she was on leave, Sabrina sent us a lengthy, rambling diatribe of all the evil things that had been done to her by managers and coworkers. It was five pages of incomplete and run-on sentences, most of which made no sense. The company attempted to decipher her claims and investigate, but Sabrina’s allegations could not be substantiated.

Sabrina’s physician reported that she should be able to do her job, so she was returned to the workplace after a few weeks. The environment in the department did not improve, with both Sabrina and her coworkers reporting misdeeds. Everyone denied everything. The situation continued for several months.

Things came to a head when one of Sabrina’s managers complained that when she turned to confront Sabrina about following her down the hall, Sabrina stuck out her forefingers like guns and said “Gotcha.” It’s hard to tell what Sabrina meant by this, but the manager took Sabrina’s action as a threat of violence and was seriously shaken.

Sabrina was put on another leave, and was told she could not return without more information from her doctor about why she was behaving so oddly and assurances that her behavior would change. We hoped this additional leave would get her to seek medical help and perhaps begin medication that might improve her behavior. Again, a risky move on the part of the employer, but morale and productivity in the department were suffering and we could not continue as we had for so long.

We received no information back from Sabrina or her doctor, despite issuing deadlines in writing to Sabrina. After Sabrina’s FMLA leave rights expired, she was terminated, because we had no reason to think the situation would ever improve.

The Moral: We were fortunate that this case did not result in litigation. While the managers and I strongly suspected that Sabrina had schizophrenia, we had no verification. It would not have really mattered whether we ever got a diagnosis or not; our suspicions were probably enough to result in a finding under the Americans with Disabilities Act that Sabrina was protected because she was “regarded” as having a mental disability. We had to assume the ADA would apply to protect her.

Under the ADA, employers must engage in an interactive process with the employee to determine whether the employee can perform the essential functions of the job with or without reasonable accommodation. Sabrina had performed her essential job functions for many years. In her last couple of years of employment, her performance suffered, but we would have had to prove that she no longer met the essential job functions. We had some documentation of poor performance, but much of the problem was behavioral, rather than low productivity.

Moreover, we would have had to prove that we attempted reasonable accommodation to get her to do her essential job functions. Her job primarily involved processing paper. She might have been able to do that. But communications with coworkers in her own and other departments were also critical, and her workplace relationships were broken by her odd behavior. We had not suggested any accommodations to Sabrina, because we had no diagnosis and no understanding of what might help her. On the other hand, she had not suggested any accommodations to us either—she denied she had any problems, and blamed everything on her managers and coworkers.

The medical leaves we put her on were the only way we felt we could get Sabrina to take the situation seriously. Ultimately, even the leaves did not get her to provide us with any information about accommodations. What if her doctor had told us that Sabrina could work from home, or could work in an isolated environment? Could we have accommodated these proposals? We might have at least had to try.

No one wanted to fire Sabrina, but the company also did not want to put up with the disruptive behavior in her department. We decided it was the best course of action. But I’ve always wondered what happened to Sabrina.

When have you confronted mental illness in the workplace? How did you handle it?

Leave a comment

Filed under Human Resources, Law, Management, Workplace

Favorite Firing: A Smelly Case


???????????Sometimes, an employer can bend over backwards to accommodate an employee and still be sued. In Kaufmann v. GMAC Mortgage Corporation, a 2007 Third Circuit case, the employer’s many good deeds were still punished with a lawsuit.

The Facts:  The plaintiff, Linda Kaufmann, started work for GMAC Mortgage Corporation in an office position in June 2002. She had severe allergies and complained about the perfumes and cosmetics that her co-workers (who all worked in a common area with her) wore.

According to the opinion issued by the Third Circuit Court of Appeals, in the first three months after Ms. Kaufmann began working for GMAC, her managers took the following actions:

  • They asked her co-workers to refrain from wearing perfume.
  • They spoke to specific employees whom she alleged were wearing perfume.
  • They moved her desk.
  • They changed the air filters in the office area.
  • They gave her a personal air filter and fan for her desk.
  • When she complained about a specific employee, they talked to that employee, and again reminded employees not to wear perfume.
  • They implemented a “perfume free zone.”
  • They moved her desk again to a more isolated area.

When Ms. Kaufmann continued to complain about smelling perfume, they again talked to a co-worker who was allegedly wearing perfume, though the manager could not smell anything.

In September 2002, GMAC granted Ms. Kaufmann twelve weeks of leave, even though she had not worked for GMAC long enough to be eligible for leave under the Family & Medical Leave Act.

Ms. Kaufmann returned to work in December 2002, and GMAC again reminded employees on several occasions not to wear perfume.

When Ms. Kaufmann continued to miss work, GMAC fired her in May 2003 – still less than a year after started work.

Several months after her termination, she sued GMAC. The federal district court granted GMAC’s motion for summary judgment, finding that GMAC had adequately accommodated Ms. Kaufmann’s disability. The Third Circuit affirmed in July 2007 – over five years after Ms. Kaufmann started work.

Thus, Ms. Kaufmann worked for GMAC for about eleven months, and they were in litigation with her for three-and-a-half years.

The Moral: As someone who becomes uncomfortable around strong perfumes, colognes, and certain pollens, I was sympathetic to Ms. Kaufmann’s complaints, though I have never thought of myself as disabled as a result of my sensitivities. There was some question whether Ms. Kaufmann’s allergy was a disability under the Americans with Disabilities Act, but the courts assumed it was a disability, and dealt with the reasonableness of the employer’s attempts at accommodation.

It is hard to see what more GMAC could have done for her. Certainly, GMAC spent a great deal of time accommodating Ms. Kaufmann’s allergy, yet she was not satisfied. She apparently wanted a “perfectly-sealed environment,” according to the Third Circuit, which the Court said was not possible.

The Court said:

“Kaufmann argues that GMAC failed to accommodate reasonably because its perfume-free policy was not adequately enforced – people wearing products with scents came into contact with Kaufmann at work.

Kaufmann seems to claim that GMAC should have provided an absolutely odor-free environment in order to accommodate her but Kaufmann does not explain how it would be possible to create such a perfectly-sealed environment.”

The Court listed the many actions GMAC had taken to improve the air quality in the workplace, and specifically around Ms. Kaufmann’s work area, and concluded that GMAC met any obligations it had to accommodate Kaufmann’s allergies.

All that can be said about accommodation from this case is that GMAC did enough. We don’t know what lesser measures might have been adequate.

There are many situations in which an employee’s health complaints may or may not be disabilities. This case demonstrates how important it is to take every request for accommodation seriously, even when the employer isn’t certain whether the employee is disabled under the ADA.

When an employer thinks it has done enough, it should do something more before terminating the employee. And, if termination does result, the employer should still expect to be sued.

Leave a comment

Filed under Human Resources, Law, Management, Workplace