Tuesday, November 3, 2015

Can an employer’s mistake erase an employee’s rights?

Masoud Sharif was a VIP Flight Attendant for Iranian Airlines, and later a Service Director for United Airlines. United fired him last year in a dispute about his use of leave under the Family and Medical Leave Act (FMLA). Now he has appealed his case to the federal Fourth Circuit. His pending case raises the question of whether an employer’s claim of an “honest belief” can prevent a retaliation claim from going to trial. If successful, Sharif’s appeal could make employers strictly liable when they take an adverse action on account of a mistaken belief about the employee’s protected activity.

Before the 1979 revolution in Iran, Masoud Sharif was a VIP Flight Attendant on Iranian Airlines. His flights carried members of the Shah’s government and family. Sharif’s father-in-law had been a colonel in the Iranian Army. In 1981, the new government in Iran imprisoned and tortured Sharif, and he was only able to get out of prison after he divorced his wife. He fled Iran through the mountains. Like some other victims of torture, Sharif began suffering panic attacks.

Sharif came to the United States in 1982, and on April 16, 1990, United Airlines hired him as a Reservation Sales Representative in Sterling, Virginia. Sharif was promoted to Service Director, supervising reservations sales agents and handling irate customers. In 2012, he worked as a Service Director for the four United Club lounges at Dulles Airport. There were about 100 other Service Directors at Dulles.

In 2009, United granted Sharif’s request for intermittent FMLA leave, so he could take leave as necessary to manage his anxiety. United renewed his request each year. In the last approval, United allowed Sharif to take leave, “Up to 1 time per month for a duration of 1 day to 5 days.”

In 2014, Sharif took advantage of United’s employee discount program. United allowed him and his family to travel standby for only the cost of the taxes. His family traveled to South Africa on March 16 and planned to return on March 28 – allowing plenty of time to get back for his March 30 shift. At the airport, he learned that Lufthansa employees scheduled a strike to start on April 2. So many passengers were now traveling that his employee standby travel could no longer get him home on time. After failing to get a standby ticket on any flight March 28 and March 29 – even after offering to pay full fare, Sharif suffered a panic attack and notified United that he would take intermittent FMLA leave. Sharif could not leave South Africa until April 1, and he did not get to Washington, DC, until April 3, 2014.

United eventually decided to fire Sharif, based on management’s belief that he made a false claim about his panic attack in order to take leave on March 30. Sharif took an unexpected retirement to avoid the termination.

Sharif sued United claiming that the decision to terminate him violated the FMLA. The district court dismissed his case, without a trial, concluding that, “Even if United’s investigation was not optimal, no reasonable fact-finder could conclude on this record that Sharif’s supervisors’ suspicions were not honestly held.”

Sharif’s case is unusual in that there is no dispute that United fired Sharif because of his use of FMLA leave – an activity protected by law. There is no dispute that if Sharif had no medical need for the leave, then his request would not be protected. On appeal, he argues that if he actually had the medical need, then he suffered retaliation for taking the leave that is authorized by law (and had already been approved by United).

United and the district court relied on Smith v. Chrysler Corp., 155 F .3d 799, 806-07 (6th Cir. 1998), for the idea that an employer’s “honest belief” that the employee had committed misconduct can permit a court to dismiss retaliation claims at summary judgment. Sharif argues that the belief of one decision-maker does not exclude the jury’s ability to find that discrimination caused the adverse action through the influence of others. This was the Supreme Court’s conclusion in Staub v. Proctor Hospital, 562 U.S. 411 (2011). Moreover, Sharif is not required to prove that anyone at United is lying. If Sharif convinces a jury that United’s explanation is unworthy of belief, that would be sufficient. St. Mary’s Honor Center v. Hicks, 509 U.S. 502, 511 (1993).

At the summary judgment level, United is not entitled to use any evidence that the jury does not have to believe. Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133 (2000). Sharif points out, “there is no other evidence to support an honest belief.” Just last year, the Supreme Court emphasized this point in the civil rights case of Tolan v. Cotton, 134 S. Ct. 1861, 1867-68 (2014)(“The witnesses on both sides come to this case with their own perceptions, recollections, and even potential biases. It is in part for that reason that genuine disputes are generally resolved by juries in our adversarial system.”)

On appeal, Sharif argues that the lower court’s decision, “would hand every defendant immunity from the employment discrimination laws by allowing it to conduct an investigation that simply stirred the air and ignored the real issues, and then incant the ‘honest belief’ talisman.”

Where a statute creates an entitlement, the employee’s rights cannot depend on the employer’s subjective beliefs. It is the law that determines whether the employee is protected, not what the employer believes about that protection. In Forman v. Small, 271 F.3d 285, 300 (D.C. Cir. 2001), the court stated, “the employer may not proffer a good faith reason for taking retaliatory action.” Otherwise, employers would be rewarded for making mistakes.

In an older labor law case, the Fourth Circuit itself held that

there is a right guaranteed by the Act – the right of an employee to reinstatement after a strike. That right is forfeited by serious strike misconduct. What we hold is that this right is not forfeited by the honest but mistaken belief of the employer that the employee has been guilty of strike misconduct

NLRB v. Industrial Cotton Mills, 208 F. 2d 87, 92 (4th Cir. 1953).

An employee’s right to use the benefits of the law, any law, will be strengthened if the Fourth Circuit can say the same thing in Sharif’s case.

Last week, the National and Metropolitan Employment Lawyers Associations (NELA and MWELA) filed an amicus brief supporting Sharif. Attorney Erik Snyder was the lead author, assisted by Stephen Chertkof, Alan Kabat and Matthew Koski.



By Richard Renner

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