Stuck in Cape Town Again

By Bill Wright

By creatively patching together scheduled days off, vacation days, and personal holidays, and then switching a shift, the plaintiff put together 21 days off. Unfortunately, he was still scheduled for one shift right in the middle of the time off.  He and his wife flew to Cape Town, and when his work shift rolled around, he called in to claim previously approved intermittent FMLA leave.  He called in the middle of the night US time and so no one asked any questions, but his use of FMLA was flagged as questionable two different ways – first because it was for one shift in the middle of 21 days off and second because it coincided with his wife’s vacation from the same employer.

When he returned to work, human resources questioned him. He couldn’t seem to recall the relevant events at first, but eventually recounted that he had been trying to find a flight home for his shift and suffered a recurrence of his condition; consequently, he legitimately used FMLA time.  The employer disbelieved him and fired him for FMLA fraud.

Tellingly, when the plaintiff sued, he did not bring an FMLA interference claim. That seems like what he’d do if he had actually used FMLA leave.  Instead he filed only an FMLA retaliation claim.  The court granted the employer summary judgment because “it seems perfectly logical” for the employer to conclude the employee “did not want to interrupt his Cape Town vacation to come back for one day of work,” and there was no evidence that the allegation of fraud was a pretext for FMLA retaliation.

At issue in the case was the thoroughness of the employer’s investigation. Here, HR let the employee write a statement, with union support, and asked for documentation to support his story.  Under the circumstances, the decision was “reasonably informed and considered.” Sharif v. United Airlines, Inc., No. 15-1747 (4th Cir. Oct. 31, 2016)