                                PUBLISHED

                   UNITED STATES COURT OF APPEALS
                       FOR THE FOURTH CIRCUIT


                               No. 15-1747


MASOUD SHARIF,

                 Plaintiff - Appellant,

           v.

UNITED AIRLINES, INC.,

                 Defendant - Appellee,
           and

UNITED CONTINENTAL HOLDINGS, INC.

                 Defendant.

------------------------------

METROPOLITAN WASHINGTON EMPLOYMENT LAWYERS ASSOCIATION;
NATIONAL EMPLOYMENT LAWYERS ASSOCIATION,

                      Amici Supporting Appellant.



Appeal from the United States District Court for the Eastern
District of Virginia, at Alexandria.   Liam O’Grady, District
Judge. (1:14-cv-01294-LO-IDD)


Argued:   September 21, 2016                 Decided:   October 31, 2016


Before WILKINSON and FLOYD, Circuit Judges, and IRENE M. KEELEY,
United States District Judge for the Northern District of West
Virginia, sitting by designation.
Affirmed by published opinion. Judge Wilkinson wrote         the
opinion, in which Judge Floyd and Judge Keeley joined.


ARGUED: Robert Scott Oswald, THE EMPLOYMENT LAW GROUP, P.C.,
Washington, D.C., for Appellant.   Hugh Scott Johnson, Jr., PCT
LAW GROUP, PLLC, Alexandria, Virginia, for Appellee. Stephen Z.
Chertkof, HELLER, HURON, CHERTKOF & SALZMAN, PLLC, Washington,
D.C., for Amici Curiae.      ON BRIEF: Andrea M. Downing, THE
EMPLOYMENT LAW GROUP, P.C., Washington, D.C.; Richard T.
Seymour, LAW OFFICE OF RICHARD T. SEYMOUR, P.L.L.C., Washington,
D.C., for Appellant.    Angela H. France, PCT LAW GROUP, PLLC,
Alexandria, Virginia, for Appellee. Erik D. Snyder, LAW OFFICES
OF ERIK D. SNYDER, Washington, D.C.; Alan R. Kabat, BERNABEI &
WACHTEL, PLLC, Washington, D.C.; Matthew C. Koski, NATIONAL
EMPLOYMENT LAWYERS ASSOCIATION, Oakland, California, for Amici
Curiae.




                               2
WILKINSON, Circuit Judge:

     Appellant       Masoud        Sharif       brought      suit      against      United

Airlines, Inc., for retaliation under the Family and Medical

Leave    Act    (“FMLA”),     29    U.S.C.       §    2601   et      seq.    (2012).    The

district   court     entered       summary       judgment      on    behalf    of   United

Airlines       and   dismissed       Sharif’s         claim.        Even    drawing     all

reasonable inferences in favor of Sharif as the nonmoving party,

Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150-51

(2000), 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.

                                            I.

     On    March     16,    2014,     Sharif         and   his      wife    travelled   on

vacation to Johannesburg and Cape Town, South Africa. Each was

employed by United Airlines at Dulles Airport and had assembled

roughly twenty days of time off from March 16 to April 4. 1 Their


     1 Sharif successfully bid for vacation leave on March 16-17,
March 19-20, March 23-24, and March 26-27. United Airlines
approved his request for personal holiday leave on April 2-3.
Sharif’s regular days off were scheduled for March 18, 21-22,
25, 28-29, April 1, and 4-5. In sum, he was not scheduled to
(Continued)
                                            3
time off did not include, however, a short two-day period from

March 30 to 31 when Sharif was assigned to customer service work

in the United Airlines lounge. Sharif placed his schedule on the

United      Airlines   shift-swap   website,    and     successfully     found

someone to cover his March 31 shift. He was unable, however, to

find anyone to cover his March 30 shift.

      Sharif had been diagnosed with an anxiety disorder in 2009,

and   United      Airlines    had   approved    his     request    to    take

intermittent leave under the FMLA to handle panic attacks. At

7:00 a.m. Cape Town Time (1:00 a.m. Eastern Standard Time) on

March 30 -- the day of his scheduled shift -- Sharif called

United Airlines to take medical leave under the FMLA. He had not

made any advance reservations for a return flight. The next day,

Sharif and his wife flew from Cape Town to Milan, Italy, where

Sharif’s niece lived. On April 3, Sharif and his wife finally

departed for Washington and arrived just in time for his wife’s

next shift.

      The    United    Airlines   Employee   Resource    Center   at    Dulles

Airport noticed that Sharif had taken FMLA leave for the only

shift he was scheduled to work in the midst of his extensive

time off and notified Kenneth Martin in Human Resources. The



work from March 16 to April 5, except for shifts on March 30
and 31. Similarly, Sharif’s wife arranged to have time off from
March 16 to April 4.


                                      4
Employee Resource Center also notified Martin that Sharif’s time

off coincided with his wife’s schedule except for March 30, and

that Sharif had taken FMLA leave under similar circumstances in

September 2013. Martin consequently began an investigation of

Sharif’s FMLA claim.

      On April 23, 2014, Martin interviewed Sharif. Jon Connor,

the United Airlines Area Manager, Elizabeth Tranium, Sharif’s

supervisor,       and     a    representative       from     the     International

Association       of     Machinists       and   Aerospace    Workers      (“Workers

Union”) were also present. When asked about his vacation and

March 30 absence, Sharif sat in silence for a period of minutes

before he gave a series of inconsistent answers. Sharif first

replied that he was not scheduled to work on March 30, and when

asked why he had taken FMLA leave if he did not have a shift,

Sharif responded that he “d[id] not recall being out sick this

day or calling out sick.” J.A. 344-45.

      After another pause, Sharif clarified that he began trying

to return home flying standby (as airline employees often do)

beginning March 29 but was unable to find any available flights

due   to   an    international       jazz   festival    in   Cape     Town    and   an

impending       pilot    strike      on   Lufthansa.    Sharif’s      story    later

evolved to claim he actually arrived at the airport on March 28

to begin looking for a flight, and that he and his wife obtained

the   additional        days   off   in   April   to   gather      with   family    in

                                            5
Pittsburg for the Persian New Year. As a result of his repeated

unsuccessful attempts to find any means to return to Washington

in time for his shift, Sharif explained that he grew anxious and

was eventually seized by a panic attack which then led to his

use of FMLA leave. He could not remember if he or his wife had

called United Airlines.

       Martin       and    Connor       both        viewed     Sharif’s       behavior       and

shifting      explanations           as      evidence         of    dishonesty.         Martin

circulated      an        email    to     United       Airlines       senior       management

explaining      that       “[w]hen      we   questioned         [Sharif],       he     was   not

truthful and told us initially that he didn’t have to work that

day. He then changed his story many times. He had no intentions

of    being    at    IAD     [Dulles]        that     day.”    J.A.     376.     Sharif      was

subsequently          suspended           without            pay,     pending          further

investigation.

       United Airlines ultimately notified Sharif of its intention

to    discharge      him    for    fraudulently            taking   FMLA     leave     and   for

making        dishonest           representations              during        the       ensuing

investigation.         Such       conduct      was    a     violation      of    the    United

Airlines Working Together Guidelines, which clearly require that

all    employees      “[b]e       truthful      in     all    communications,          whether

oral,    written      or    electronic.”            J.A.    264.    Sharif      was    given   a

hearing on June 5, 2014, after which the Workers Union told



                                                6
Sharif he was likely to be fired and recommended that he retire.

Sharif retired under threat of termination on June 9, 2014.

                                               II.

          Congress enacted the FMLA to “balance the demands of the

workplace with the needs of families” and “to entitle employees

to    take    reasonable       leave         for     medical    reasons.”     29     U.S.C.

§ 2601(b)(1),(2) (2012). In relevant part, Congress recognized

that “there is inadequate job security for employees who have

serious health conditions that prevent them from working for

temporary     periods.”       Id.    §       2601(a)(4).      Congress     thus    required

employers     to     accommodate         a    limited      amount    of    “intermittent”

leave “when medically necessary” as certified by a health care

provider.      Id.        §§ 2612(b),         2613;     29     C.F.R.      §§ 825.202-05,

825.305-08       (2016)       (defining            requirements      for    intermittent

leave). Congress intended the FMLA to accomplish these purposes

“in   a    manner    that     accommodates           the     legitimate     interests      of

employers.” 29 U.S.C. § 2601(b)(3).

      The    FMLA    provides       that      “[i]t    shall    be   unlawful      for    any

employer to interfere with, restrain, or deny the exercise of or

the    attempt       to     exercise,         any     right    provided      under       this

subchapter.” Id. § 2615(a)(1). The substantive rights guaranteed

by the FMLA are prescriptive, and a plaintiff seeking redress

for employer interference with an entitlement is only required

to show that he or she qualified for the right that was denied.

                                                7
Yashenko v. Harrah’s NC Casino Co., LLC, 446 F.3d 541, 546 (4th

Cir. 2006).

         The FMLA also provides that “[i]t shall be unlawful for any

employer to discharge or in any manner discriminate against any

individual        for    opposing     any    practice          made     unlawful        by    this

subchapter.”        29     U.S.C.      § 2615(a)(2).              This        limitation        on

employers is proscriptive. Yashenko, 446 F.3d at 546. To succeed

on   a    claim    of    retaliation,       a       plaintiff        must     show    “that      he

engaged in protected activity, that the employer took adverse

action against him, and that the adverse action was causally

connected to the plaintiff’s protected activity.” Id. at 551

(quoting Cline v. Wal-Mart Stores, Inc., 144 F.3d 294, 301 (4th

Cir.     1998)).    Unlike      prescriptive          entitlement            or   interference

claims,      employer      intent     here      is        relevant.         Hodgens     v.    Gen.

Dynamics     Corp.,      144   F.3d    151,         160    (1st      Cir.    1998);     Rice    v.

Sunrise Express, Inc., 209 F.3d 1008, 1017 (7th Cir. 2000).

         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). Laing v. Fed. Exp. Corp., 703 F.3d 713, 717 (4th

Cir.      2013);    Yashenko,       446     F.3d          at   551.    Under      the        latter

framework, a plaintiff must first produce sufficient evidence to

establish a prima facie case that the elements of retaliation

are satisfied. McDonnell Douglas, 411 U.S. at 802. The burden of

                                                8
production then shifts to the employer to rebut the prima facie

presumption      of   retaliation        and     provide       “some          legitimate,

nondiscriminatory      reason”     for    the    adverse       employment         action.

Id.; see Texas Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248,

253-55    (1981).     If    the    employer          meets     this       burden,      the

presumption     of    retaliation    is        dissolved      and       the     plaintiff

resumes   the    burden     of    persuading         the     factfinder        that    the

employer’s      proffered    explanation         is     merely      a     pretext      for

discrimination. St. Mary’s Honor Ctr. v. Hicks, 509 U.S. 502,

510-11 (1993); Burdine, 450 U.S. at 256; McDonnell Douglas, 411

U.S. at 804. A plaintiff may satisfy this burden by showing

either that the employer’s explanation is not credible, or that

the   employer’s      decision      was       more      likely      the       result    of

retaliation. Reeves, 530 U.S. at 143; Burdine, 450 U.S. at 256.

In any event, the plaintiff must produce sufficient evidence to

create a genuine dispute of material fact such that a reasonable

factfinder    could    conclude     the       adverse      employment         action   was

taken for an impermissible reason, i.e., retaliation. Reeves,

530 U.S. at 143, 148-49; Hicks, 509 U.S. at 510-11; Burdine, 450

U.S. at 253.

      Sharif argues that United Airlines threatened to terminate

his employment in retaliation for taking FMLA leave, a violation

of the proscriptive provisions in 29 U.S.C. § 2615(a)(2). Sharif

contends that he produced sufficient evidence for a reasonable

                                          9
jury to conclude that his use of FMLA leave was a protected

activity and that he was constructively discharged as a result.

United Airlines maintains that Sharif was discharged not only

for fraudulently taking FMLA leave but also for being untruthful

during the ensuing investigation in violation of the Working

Together Guidelines. The main issue on appeal is whether Sharif

has produced sufficient evidence of pretext to survive summary

judgment.

                                    III.

     The summary judgment standard requires that “the evidence

is such that a reasonable jury could return a verdict for the

nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242,

248 (1986); see FED. R. CIV. P. 56(a) (2016). Even drawing all

reasonable   inferences   in   Sharif’s    favor,    Reeves, 530      U.S.    at

150-51, he fails to meet this burden. Sharif fails to produce

sufficient evidence for a reasonable factfinder to conclude that

United Airlines’ explanation was a pretext for retaliation. He

cannot   rely   upon   “mere   speculation   or     the   building    of     one

inference    upon   another”   to   establish     that    he   was   fired    in

retaliation for taking FMLA leave. Othentec Ltd. v. Phelan, 526

F.3d 135, 140 (4th Cir. 2008) (quoting Beale v. Hardy, 769 F.2d

213, 214 (4th Cir. 1985)). When disciplinary action is “based on

little evidence of wrongdoing, a genuine issue might exist as to



                                     10
pretext,” but the evidence here plainly exceeds that threshold.

See Laing, 703 F.3d at 722.

                                           A.

       Sharif claims that he travelled to South Africa with the

intention of returning in time for his March 30 shift, but that

he    was   unable    to    obtain    a    return      flight   despite          persistent

efforts     beginning       on   March    28.   He   contends        that    a    prominent

international        jazz    festival,     coupled      with    an    impending       pilot

strike on Lufthansa, made it impossible to find any available

seats on any airline returning to Washington. The pressure to

find a flight and the prospect of missing work continued to

build until Sharif suffered a panic attack and called United

Airlines to take FMLA leave. Once the panic attack subsided,

Sharif found a flight to Milan where his niece lived so that he

and his wife would have a place to stay while they continued

their attempt to return home.

       Sharif then explains that he was unaware of the company

investigation        concerning      his   March       30   absence     until       he   was

spontaneously questioned on April 23. Sharif says he was unable

to immediately recall the events of a specific day weeks earlier

and    thus   could    not       immediately     and    accurately          recount      what

happened. The situation was further complicated by the onset of

another panic attack during what he describes as tantamount to

an    interrogation.         However,      Sharif       provided       the       foregoing

                                           11
explanation once he was given the opportunity to compose himself

and write a response.

      This     whole        story    runs      into       multiple       problems.      The

undisputed evidence depicts an employee departing for vacation

despite being scheduled to work, and then conveniently calling

in FMLA leave 12 hours after the last plane departed that would

allow   him    to    return    before      his    scheduled       shift.     Sharif    also

waited to contact United Airlines until the middle of the night

in Washington when no one was present to answer the phone and

ask for details about his FMLA claim. It is undisputed that he

then visited his niece in Milan, and returned to Washington just

in   time     for    his    wife’s    next       shift.    When     Sharif    was     later

questioned about his use of FMLA leave, he first denied even

being scheduled to work, and then provided a constantly changing

story   about        his    attempt     to     return      home.     United     Airlines

requested      receipts      from    the     standby      seats    Sharif    claimed     to

purchase      in    his    unsuccessful      attempts      to     find   a   flight,    but

Sharif failed to produce them. In short, Sharif provided the

company with no evidence to support his claim aside from his own

shifting      statements.       It    seems       perfectly       logical    for    United

Airlines to conclude that Sharif did not want to interrupt his

Cape Town vacation to come back for one day of work.




                                             12
                                           B.

       In evaluating employer intent and the question of pretext,

the    district      court     may     consider      “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)) (discussing factors that

might indicate discriminatory intent). We initially note that

United Airlines approved every one of Sharif’s requests for FMLA

leave. These requests totaled 56 days in the two years prior to

his    discharge     and     include    FMLA    leave    after    March    30.   While

United Airlines cannot retaliate against someone for exercising

their rights under the FMLA, this is not the record of a company

that is historically hostile to FMLA leave in any discernable

way.

       Sharif claims that the notification Martin received from

the Employee Resource Center which triggered United Airlines’

investigation is actually direct evidence of retaliation. The

email laid out how Sharif had taken FMLA leave for the only

shift he was scheduled to work in the midst of his extensive

time off, that his schedule coincided with his wife’s time off

                                           13
except for his shift on March 30, and that Sharif had taken FMLA

leave      under   similar      circumstances            in   September         2013.     At    a

minimum, Sharif argues, this is evidence of pretext because he

would not have been investigated and ultimately discharged but

for taking FMLA leave.

      We    are    unpersuaded.       To   begin     with,         the    email     from   the

Employee      Resource     Center      relayed       to       Martin       straightforward

factual     information,        and   such      factual        communication            between

human    resources     personnel      is     not,    without         more,      evidence       of

discriminatory        animus.    Sharif      also        fails      to    understand       that

direct     evidence    must     demonstrate         that      an    adverse        employment

action was actually “due to . . . FMLA leave as opposed to some

other    lawful    reason.”      Laing,      703    F.3d      at    718     n.1;    see    also

Stallings v. Hussmann Corp., 447 F.3d 1041, 1051 (8th Cir.2006)

(explaining that termination for “calling in FMLA for non-FMLA

reasons” is not direct evidence of retaliation). Contrary to

Sharif’s contention, the proffered evidence suggests the same

nondiscriminatory motivation that United Airlines has repeatedly

advanced.     Sharif     was    investigated        and       subsequently         discharged

for     fraudulently      taking      FMLA      leave,        and        then   for     making

dishonest     representations         during       the    ensuing        investigation         in

violation of the Working Together Guidelines. Unlike Sharif’s

shifting narrative, the company’s explanation for its action has

remained a consistent one.

                                           14
     Sharif then claims that United Airlines’ investigation was

cursory     and     that     failure     to    comply          with    established

investigatory      procedure   is   evidence       of   pretext.      In   response,

United     Airlines    catalogues      how    it    reviewed       Sharif’s    work

calendar, the time and place of his phone call to take FMLA

leave, United Airlines flight records and whether Sharif had

made any seat reservations. United Airlines also afforded Sharif

the opportunity both to present his version of events and to

prepare a written account with the subsequent assistance of a

Workers Union representative, and finally requested that Sharif

provide any documentation such as standby receipts that might

support his story. Sharif retorts that United Airlines failed to

properly     verify    his   version     of   events      by     researching    the

validity of his anxiety disorder and independently checking seat

availability on other airlines flying out of Cape Town prior to

March 30. He also argues that, above all, he was denied “a

reasonable     opportunity     to   consult”       with    his     Workers     Union

representative before first meeting with Martin as required by

the governing Collective Bargaining Agreement. See J.A. 254.

     Although Sharif faults United Airlines for not conducting a

more thorough investigation, “the key inquiry is whether the

employer    made   a   reasonably      informed     and   considered       decision

before taking an adverse employment action.” Smith v. Chrysler

Corp., 155 F.3d 799, 807 (6th Cir. 1998). United Airlines had no

                                        15
obligation to pursue additional investigation when it had more

than ample reason to believe it had been lied to. And while

failure      to     comply      with   established      investigatory        procedures

might indeed be evidence of improper motive, Arlington Heights,

429 U.S. at 267, it is not per se sufficient to create a genuine

dispute      as     to    pretext.     A    Workers    Union       representative    was

present at Sharif’s meeting with Martin. Neither Sharif nor the

Workers Union representative requested an opportunity to consult

with one another, and Sharif fails to allege what difference a

consultation would have made.

       Finally, Sharif contends that, while he would have been

penalized for simply skipping his March 30 shift, he would not

have    been       discharged.       He    claims   that     the    severity    of   the

consequence he received is evidence of pretext. However, 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).     Discharge      is   not

disproportionate to the offense of misrepresentation and fraud.

As the Sixth Circuit has explained, an employer can “rightfully

consider[] workplace disability fraud to be a serious issue.”

See Seeger v. Cincinnati Bell Tel. Co., 681 F.3d 274, 284 (6th

Cir.   2012).       It    is    inconsequential       that     missing   work   without

providing notice normally merits a lesser penalty because those



                                             16
employees do not violate the honesty component of the Working

Together Guidelines.

                                            C.

      The FMLA serves the important purpose of allowing employees

to take leave for legitimate family needs and medical reasons,

but   it    is   not    a     right   that       can    be   fraudulently          invoked.

Dishonest     representations         may    carry       additional        risks       in   an

airline charged with meeting large volume public demands and

providing     safe     and    efficient      transportation          services.          These

goals require predictable policies that ensure to the extent

possible and consistent with the FMLA that proper personnel will

be on duty. While a company may not deny valid requests for

leave, and an employer cannot use allegations of dishonesty as a

pretext for subsequent retaliation, it is equally important to

prevent the FMLA from being abused. As the Department of Labor

explains,    “[a]n     employee       who   fraudulently          obtains       FMLA    leave

from an employer is not protected by FMLA’s . . . provisions.”

29 C.F.R. § 825.216(d).

      So it is here. The evidence taken as a whole plainly paints

the   picture     of    an    employee      who    used      FMLA    leave       to     avoid

interrupting      his       vacation,       and    then      gave     a     variety         of

inconsistent     explanations         for    his       behavior     upon    his    return.

Sharif fails to meet his burden of showing that United Airlines’

explanation      for    his    discharge     was       pretextual,        and    therefore

                                            17
fails to establish a genuine dispute of material fact suitable

for trial. 2

                              IV.

     For the foregoing reasons, the judgment of the district

court is

                                                       AFFIRMED.




2  The district court discussed, and the parties argued
extensively, the application of a so-called “honest belief rule”
that would require plaintiffs to show that their employers’
nondiscriminatory motivation was not sincerely held. See Sharif
v. United Airlines, Inc., No. 1:14-CV-1294, 2015 WL 4042173, at
*6-7 (E.D. Va. July 1, 2015). We think the issues in this case
are most profitably addressed through the well-established proof
scheme of McDonnell Douglas and its progeny. Accordingly, we see
no reason to address the “honest belief rule.”



                               18
