Tag Archives: United Airlines

Apologize When You Make a Mistake


I’ve written on a couple of occasions about apologies (see here and here). In one post, I said that lawyers often don’t recommend apologies because of the potential legal risk.

But when you’re wrong, you’re wrong. Sometimes, an apology is the best solution.

United logoTwo situations have been in the news recently which have caused public relations disasters. In one, United Airlines bumped a man from his seat on a flight because the airline needed the seat to transport crew to another airport to fly another plane. The passenger refused to deplane, and he was injured when airport security physically removed him.

The United Airlines CEO apologized, but his apology was deemed insincere.

Sean_Spicer_(32293609264)_(cropped)

Press Secretary Sean Spicer. Photo by Gage Skidmore.

In the second situation, Sean Spicer, President Trump’s Press Secretary, compared Assad of Syria to Hitler, but said that while Assad had gassed his people, Hitler had not—obviously forgetting the millions of people Hitler had gassed in concentration camps.

Mr. Spicer apologized, but his apology was deemed insufficient.

Mr. Spicer’s error was a mistake of fact. He knows full well—and he should have remembered—that Hitler was responsible for the Holocaust. I’m not a Trump fan, nor a Spicer fan, and I cringed when I heard Mr. Spicer’s remark. But I assume his mind deserted him for a moment. Within hours he apologized for his mistake.

In my opinion, that should be the end of the story. But opponents of the Trump Administration do not seem willing to let it go. How can anyone forget the Holocaust? they ask. Well, people’s brains do stupid stuff sometimes. Hasn’t yours?

Shouldn’t we be forgiven our stupidity?

In my opinion, the United Airlines situation is the harder case. This was not a simple error of fact. It was a matter of corporate policy—United bumps passengers when their seats are needed for smooth operation of the airline. And airlines are permitted by law to physically remove passengers from airplanes when the passengers are argumentative or combative.

But somehow, humanity got lost in this situation. A doctor in his sixties, who said he needed to see patients the next day, who had paid for a ticket and had a valid boarding pass, and who was already seated in his assigned seat, was injured when he protested the airline’s random revocation of his seat assignment. (I’ve read conflicting reports on whether United had the right to bump someone who was not technically on an “overbooked” flight.)

Then the CEO said the airline would “re-accommodate” the passenger. This word choice was unfortunate—the man had not been accommodated in the first place, so how could he be re-accommodated? How would “re-accommodation” help his injuries? In addition, the initial corporate statement blamed the passenger for being disruptive.

I think back to the post I wrote about a 2012 post in Contented Cows, in which the author stated that when you need to take accountability for a mistake, you should

  • Apologize quickly and without excuses or weasel words, and
  • Clean up the mess you made.

In this case, Sean Spicer apologized directly, without much in the way of weasel words, though he perhaps tried to explain himself too much. He is trying to clean up the mess he made, and we should allow him to do so.

By contrast, United Airlines made excuses, used weasel words, and shifted the blame in its initial attempt to apologize. It will probably take them a long time to clean up the mess they made.

When have you had to apologize? How well do you think you handled it?

 

 

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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?

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