Wake Forest Law Review

By Ryan C Dibilio and Robert M. Padget III

Hannah P. v. Daniel Coats

In this case, Appellant Hannah P. (“Hannah”) asserted that her former employer, the Office of the Director of National Intelligence (“Appellee”), discriminated against her pursuant to the Rehabilitation Act of 1973 (“Rehabilitation Act”), 29 U.S.C. § 701, et seq., and violated the Family Medical Leave Act of 1993 (“FMLA”), 29 U.S.C. § 2601, et. seq., by not hiring her for a permanent position.  The district court granted summary judgment for Appellee as to all claims.  The Fourth Circuit affirmed the district court’s judgment as to the Rehabilitation Act and FMLA retaliation claims; however, the Fourth Circuit vacated the judgment as to Hannah’s FMLA interference claim.  The Court determined a genuine issue of material fact remains as to whether Hannah provided notice of her disability and interest in FMLA leave sufficient to trigger Appellee’s duty to inquire.  The Fourth Circuit held that a reasonable jury could find that Hannah’s disclosure of her depression and her April 9, 2015 request for psychiatrist-recommended leave was indeed sufficient to trigger Appellee’s duty to inquire further as to whether she was seeking FMLA leave.  Disclosure of a potentially FMLA-qualifying circumstance, such as depression, and an inquiry into leave options has been held by the Fourth Circuit as sufficient to create a material question of fact regarded whether the employer’s FMLA inquiry obligations have been triggered.  Thus, the case was remanded for consideration of Hannah’s FMLA interference claim.

United States v. Gregory Kyle Seerden

In January 2017, George Kyle Seeden (“Appellant”) was accused of sexual assault on a woman he met in Virginia Beach, Virginia, while visiting for training.  Subsequently, the Naval Criminal Investigation Service (“NCIS”) obtained a military search warrant and found child pornography on Appellant’s phone.  NCIS used this to obtain a federal search warrant and discovered more child pornography.  Appellant sought to suppress the evidence because it violated the Military Rules of Evidence and because it was fruit of the poisonous tree.  While the district court agreed the evidence violated the Military Rules of Evidence “authorization” requirement in Rule 315, the Court admitted the child pornography found in the second search under the good faith exception.  Appellant entered a conditional guilty plea in violation of 18 U.S.C. §§ 2251(a) and (e), production of child pornography.  He then appealed.  The Fourth Circuit reviews a district court’s decision to deny a motion to suppress under two standards of review: (1) findings of fact are reviewed for clear error; and (2) legal conclusions are reviewed de novo.  The Court held that the evidence should not be suppressed under the Military Rules of Evidence because the Federal Rules of Evidence govern admissibility in federal criminal proceedings.  The Court stated, “just as states ‘lack the power to impose on federal courts requirements stricter than those mandated by the federal Constitution . . . so too does the military.’”  Consequently, the Fourth Amendment provides the standard for whether evidence seized pursuant to a non-federal warrant is admissible in federal court.  Further, even if the initial search violated the Fourth Amendment, the good faith exception to the exclusionary rule precludes the evidence obtained in the first and second searches.  The good faith exception admits evidence obtained in unlawful searches on reasonable reliance on a defective warrant.  As Appellant’s commanding officers authorized the search of his phone believing it to be a valid authorization, the good faith exception applies and the evidence is admissible.  For these reasons, the Fourth Circuit affirmed the district court’s judgment.

United States v. Nicholas Young

This was a criminal case in the Eastern District of Virginia where a jury convicted Nicholas Young (“Young”) on one count of attempting to provide material support to the Islamic State of Iraq and the Levant and two counts of attempting to obstruct justice.  Young asserted five sets of errors on appeal.  The first pertained to the district court admitting Nazi and White Supremacist paraphernalia that the FBI discovered in a search of his home and whether the seizure of the items exceeded the search warrant’s scope.  The Fourth Circuit affirmed the district court’s ruling and concluded the seizure did not exceed the warrant’s scope.  The second alleged error was the district court’s admission of an expert witness.  However, determining a witness is an expert is a highly deferential standard, and the Fourth Circuit concluded the district court did not abuse its discretion by admitting the expert.  The next error that Young alleged was that the district court erred when it allowed admission of evidence of Young owning weapons and of evidence of comments Young made about attacking federal buildings. Young also argued that the district court erred in excluding certain comments made by Young and several FBI agents that Young believed to be exculpatory. However, the Fourth Circuit again concluded the district court did not abuse its discretion in its evidentiary rulings.  The fourth alleged error is that the government did not provide sufficient evidence to prove the attempted obstruction of justice charges.  Here, the Fourth Circuit concluded that the evidence presented at trial was insufficient to convict Young on the attempted obstruction of justice counts.  Thus, the Fourth Circuit affirmed the material support conviction, vacated the obstruction convictions, and remanded for resentencing.

ACA Financial Guaranty v. City of Buena Vista, Virginia

In this case, bonds were issued to refinance debt on a municipal golf course in the City of Buena Vista, Virginia (the “City”).  The repayment of the bonds depended on the City making lease payments of the golf course and the City failed to make these payments.  After the City did not make the lease payments, this litigation ensued.  The district court dismissed the complaint.  The Fourth Circuit affirmed the dismissal of the complaint, holding the City’s obligation to make rent payments is not legally enforceable when the obligation to make the payments is expressly subject to the City’s annual decision to appropriate funds.  The Court reasoned that the language of the lease agreement was unambiguous in that if the City did not appropriate funds, the City had no obligation to make the rent payments.  The City decided not to appropriate funds for the rent payments and therefore had no obligation to make the rent payments.  The Fourth Circuit opined that there can be no suit against a party for breaching an obligation if the party never had the obligation in the first place.  Thus, the district court’s judgment was affirmed.

Nikki T. Thomas v. Nancy A. Berryhill

This was a civil case in which the Commissioner of Social Security denied Nikki Thomas’s (“Thomas”) application for supplemental security income (“SSI”).  Thomas obtained review in the district court, which affirmed the denial.  She then appealed to the Fourth Circuit, which found that the Administrative Law Judge (“ALJ”) made two errors, vacated the ruling, and remanded the case.  The issues on appeal were, first, whether the ALJ erred by failing to provide a logical explanation about how the judge weighed the evidence and made the ultimate conclusion regarding Thomas’s residual functional capacity (“RFC”).  The second issue was whether there was an apparent conflict between the dictionary of occupational titles and the vocational expert’s testimony.  The Fourth Circuit determined that when evaluating Thomas’s RFC, the ALJ did not adequately explain the conclusions pertaining to Thomas’s mental impairments because the analysis contained too little explanation for the Court to be able to conduct a meaningful review. Additionally, the Fourth Circuit concluded that there was a conflict between the dictionary of occupational titles and the testimony of the vocational expert, but the ALJ did not identify or resolve it.  For these reasons, the Fourth Circuit vacated the district court’s grant of summary judgment and remanded to the district court with instructions to remand to remand to the Commissioner of Social Security for further administrative proceedings.

Mitra Rangarajan v. Johns Hopkins University

In this civil case, Mitra Rangarajan (“Rangarajan”) was constructively discharged from her job as a nurse practitioner at the School of Medicine of Johns Hopkins University (“Johns Hopkins”).  Rangarajan contended that she was discharged because of discrimination and retaliation, while Johns Hopkins contended that she was discharged because of her performance.  Rangarajan commenced four separate actions against Johns Hopkins arising out of her discharge, alleging state torts of defamation and interference with prospective advantage, as well as violations of the False Claims Act, the Maryland False Health Claims Act, Title VII, and 42 U.S.C. § 1981.  The district court dismissed all four of the actions.  Three of the actions were dismissed by the district court as a sanction for “flagrant and unremitting” violations of the Federal Rules of Civil Procedure by Rangarajan.  The Fourth Circuit held that the district court did not abuse its discretion by dismissing those actions as a sanction.  The Fourth Circuit noted that Rangarajan received notice that dismissal of her actions was a potential sanction that the district court would take.  There was a full opportunity for Rangarajan to respond, and she did in fact respond before any decision on sanctions was actually made.  Rangarajan also rendered the entire discovery process virtually useless by her actions, and the parties had invested substantial time and money in the discovery process.  The Court finally opined that Rangarajan’s abuse of the proceeding would have likely continued into the future.  Thus, the district court did not abuse its discretion and the judgment of the district court was affirmed.

By Kelsey Hyde

On October 31, 2016, in the civil case of Masoud Sharif v. United Airlines, Inc., the Fourth Circuit affirmed the decision of the District Court for the Eastern District of Virginia dismissing plaintiff’s claims of unlawful retaliation by his employer. Because plaintiff failed to sufficiently rebut the defendant employer’s reasoning and factual support for their actions against him, the Fourth Circuit found the District Court had correctly granted defendant’s motion for summary judgment and dismissed plaintiff’s claims.

Sharif’s Claims and Subsequent Proceedings

On March 14, 2014, Masoud Sharif and his wife, both employees of United Airlines, Inc. at Dulles Airport in Washington, D.C., embarked on a planned vacation to South Africa. Their trip was scheduled to last until April 4, as a result of their successful bidding and receipt of approximately 20 days off, but, in the midst of those 20 days, Sharif was still assigned to work March 30 to 31 at customer service back in Washington, D.C.  Through the United Airlines “shift-swap” website, he was able to cover one day, but was still scheduled to work March 30.

However, back in 2009, Sharif had been diagnosed with an anxiety disorder, resulting in his qualifying for intermittent leave under the Family and Medical Leave Act (“FMLA”), 29 U.S.C. § 2601, et. seq. (2012), in order to handle his panic attacks. On the morning of March 30, the day of the shift he had unsuccessfully tried to cover, Sharif called from South Africa to take medical leave under the FMLA. Sharif had not made any prior reservations for a return flight to the U.S., but did fly to Italy with his wife the next day, and did eventually depart for Washington on April 3, arriving back just in time for his wife’s shift.

The circumstances of Sharif’s FMLA leave, coincidentally falling on the only day he was scheduled to work in the midst of planned time-off, did not go unnoticed. Instead, this incident, along with another prior instance in September 2013 where Sharif took FMLA leave under similar circumstances, inspired an investigation. Sharif was interviewed by a member of Human Resources and gave a series of inconsistent answers regarding his “unsuccessful efforts” to return home in time for his shift. As a result, senior management was notified that Sharif was untruthful in his answers, and changed his story many times, which, ultimately, led to the conclusion that he never intended to make it back in time to work his shift. Other evidence in employment and travel records also corroborated this conclusion. After being suspended without pay, Sharif was notified that United Airlines planned to terminate him for fraudulently taking FMLA leave and for making dishonest representations during the subsequent investigation. Sharif retired under threat of termination in June 2014.

Challenging Employer Action as Retaliation in Violation of FMLA

            The FMLA includes both a prescriptive element, guaranteeing substantive rights to employees who qualify, and a proscriptive limitation on employers, which makes it unlawful for employers to discharge employees for opposing employment practices that are unlawful under the FMLA. 29 U.S.C. §§ 2615(a)(1), 2615(a)(2). The proscriptive limitation effectively provides plaintiff employees with an avenue to legally dispute retaliation by their employers.

The Fourth Circuit reviewed relevant Supreme Court and Circuit Court decisions to navigate the standards of law and burdens of proof applicable in this case. To succeed on retaliation claims, a plaintiff must show that (1) they engaged in protected activity, (2) the employer took adverse action against them, and (3) this adverse action was casually connected to the protected activity. Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 551 (4th Cir. 2006) (citing Cline v. Wal-Mart, 144 F.3d 294, 301 (4th Cir. 1998)). Thus, employer intent is especially relevant to such claims, and plaintiff can establish such intent by either direct evidence, or under the “burden-shifting framework” introduced by the Supreme Court in McDonnell Douglas Corp. v. Green. 411 U.S. 792, 800-06 (1973).

This burden-shifting framework entails: (a) plaintiff establishing a prima facie case of retaliation; (b) if successful, the burden shifts to the employer to provide some legitimate, non-discriminatory reason for the adverse action to rebut plaintiff’s prima facie case; (c) if successful, the burden shifts back to plaintiff to persuade fact-finders that employer’s explanation in (b) was a “pretext” for discrimination. Id. at 802-04. This third element requires plaintiff to produce sufficient evidence such that a reasonable fact-finder could conclude the employer’s reasons were impermissible.

In addition to these standards specific to the FMLA and retaliation claims, the summary judgment standard further requires that a reasonable jury could find for the non-moving party, in this case Sharif. See Fed. R. Civ. P. 56(a) (2016).

Legal Contentions on Appeal

Sharif filed suit against United Airlines for retaliation in violation of the proscriptive provision of FMLA, arguing they threatened to terminate him for taking FMLA leave and that their proffered reasons were a mere pretext for this discriminatory act. The District Court found that Sharif failed to create an issue of triable fact regarding United Airline’s explanation for his threatened discharge as allegedly pretextual, and awarded summary judgment to the defendant employer, dismissing Sharif’s claims. On appeal, Sharif contends that he has produced sufficient evidence of pretext to survive summary judgment.

Plaintiff’s Failed to Create a Triable Issue of Fact 

            Ultimately, the Fourth Circuit was unpersuaded by plaintiff’s argument that United Airlines’ actions were a pretext for impermissible discriminatory conduct under the FMLA. The Court considered the evidence as a whole, in a light most favorable to the plaintiff, yet could not find any cause for dispute over the logic and reasoning of United Airline’s conclusion. On the contrary, they found all evidence supported the nondiscriminatory motivations for their action against Sharif, based on the facts available from Sharif’s employment records, his noted FMLA leave, and the results of the subsequent investigation. Additionally, the Court found that Sharif’s inconsistent narrative throughout the investigation, as well as his failure to provide any documentation or verification of his own version of the events, did not effectively dispute the evidence proffered by United Airlines, or offer any alternative, such that a fact-finder could reasonably rule in favor of him. Thus, he failed to meet his burden to provide sufficient evidence and create a genuine dispute of material fact regarding his employer’s motives as pretext.

Affirming Dismissal and Defending the Purpose of the FMLA

            Based on their analysis of the case under applicable Supreme Court and Fourth Circuit precedent, the Fourth Circuit affirmed the dismissal of plaintiff’s claims. In doing so, the court also highlighted the fundamental importance of the FMLA, allowing employees to take leave for legitimate family needs and medical reasons without threatening job security, and emphasized that fraudulent invocations and dishonest representations for claims under the FMLA greatly compromise this Congressional goal. As such, their decision reflected the importance in providing employers the ability to sanction employees who threaten to abuse this statute and undermine its purpose.