NELA Joins MWELA to Challenge the So-Called "Honest Belief" Defense in the Fourth Circuit

By Matthew C. Koski posted 11-09-2015 01:37 PM


On October 26, 2015, NELA joined the Metropolitan Washington Employment Lawyers Association (MWELA) in filing an amicus brief in the U.S. Court of Appeals for the Fourth Circuit in support of the Plaintiff-Appellant in Sharif v. United Airlines, Inc. 

Mr. Sharif, who worked as a Service Director for United Airlines, suffered from anxiety as a result of being imprisoned and tortured by Iranian police during the Islamic Revolution in 1979. To manage his anxiety, Mr. Sharif requested, and was granted, intermittent leave under the Family and Medical Leave Act (FMLA). Under the arrangement, Mr. Sharif was allowed to take leave once a month for one to five days, as necessary, as long as he provided United with notice. 

In March 2014, Mr. Sharif and his wife took an approved vacation to South Africa.  At the end of their trip, a jazz festival and airline strike prevented the couple from returning home in time for Mr. Sharif to report back to work as required. As a result of the unexpected delay and realization that he would miss his next assigned shift, Mr. Sharif suffered an anxiety attack. Mr. Sharif therefore notified the Defendant that he would be using his approved intermittent leave, and would not be reporting to work as originally scheduled. Mr. Sharif was subsequently terminated for violating the Defendant’s “honesty policy” and for “fraudulently [claiming] an FMLA qualifying illness” to excuse his absence from work.

The District Court granted summary judgment in favor of the Defendant on Mr. Sharif’s FMLA retaliation claim, relying substantially on the so-called “honest belief” defense, whereby a defendant’s proffered non-discriminatory reason for taking an adverse action against the Plaintiff need not be accurate, as long as it is “honestly believed.”

Drawing on an extensive line of cases from the U.S. Supreme Court and Courts of Appeals, the amicus brief systematically dismantles the legal and practical reasoning underlying the so-called “honest belief” defense. To accept a defendant’s professed “honest belief” that the reasons for taking an adverse action against an employee are correct, when presented with evidence that the asserted reasons are unworthy of credence, requires the court to draw a series of inferences regarding the weight of that evidence and the credibility of those presenting it, in favor of the non-moving party. This is forbidden at summary judgment, as recently re-affirmed by the U.S Supreme Court in Tolan v. Cotton, 134 S. Ct. 1861 (2014). Further, the brief thoroughly demonstrates that the application of the “honest belief” defense is incompatible with the longstanding rules courts have used to determine whether a defendant’s proffered non-discriminatory reasons are in fact a pretext for unlawful behavior.

The brief was drafted by Stephen Z. Chertkof (Heller, Huron, Chertkof & Salzman, PLLC), Erik D. Snyder (Law Offices of Erik D. Snyder), and Alan R. Kabat (Bernabei & Wachtel, PLLC), all from Washington, D.C.  The brief is available in the Amicus Library on the NELA Exchange.

#CivilProcedure #SummaryJudgment #FMLA #4thCircuit #Amicus #InterestedWitnesses #Retaliation