Employer Not Liable Under FMLA for Terminating Employee for Falsifying Reports

Kollman & Saucier
Kollman & Saucier
01/15/2013

A former FedEx mail courier sued the global delivery service company after being terminated for falsifying delivery records following her return from leave under the Family and Medical Leave Act.  Kimberly Laing, a twenty-one year employee, claimed FedEx terminated her in retaliation for taking FMLA leave and failed to restore her to an equivalent position after she came back.  The Fourth Circuit Court of Appeals unanimously affirmed summary judgment in favor of FedEx.  Laing v. Fed. Express Corp., No. 11-2116, 2013 U.S. App. LEXIS 532 (4th Cir. Jan. 9, 2013).

After injuring her knee on the job, Laing notified FedEx that she planned to schedule surgery.  Before she applied for FMLA leave, FedEx grew suspicious that Laing had falsified her delivery reports to her advantage, which Laing knew was a terminable offense.  Laing’s report entries indicated she had made deliveries to two different addresses at the same time.  Other evidence showed the likelihood that Laing was “gaining time,” or making several stops to one address to deliver multiple packages, instead of delivering all of the packages at once.  While FedEx’s investigation was pending, Laing applied for and was granted FMLA leave for her surgery.

Laing pointed to her earlier conversations with FedEx Operations Managers as direct evidence that FedEx discriminated against her for taking FMLA leave: in response to Laing’s concern as to whether her medical leave would “be a problem,” one Operations Manager replied, “Well, we’ll do our best to keep your job open for you.”  When Laing asserted that he had to keep her job open for her under FMLA, the Operations Manager responded, “That’s not necessarily the case.  You don’t know how it works.”  The Fourth Circuit found that the manager’s statements were an accurate explanation of the FMLA, and declined to find any discriminatory animus.  Another Operations Manager jokingly said, “[W]e’re going to do everything we can to get rid of your route while you’re gone,” quickly adding, “I’m just kidding.”  Even though Laing did not get the joke, the Court characterized this statement as “lighthearted” and found that it also lacked discriminatory animus.

Laing failed to establish that FedEx’s reason for terminating her was pretext for FMLA retaliation, as she provided no evidence that FedEx had treated her less favorably than another employee who had violated the same policy but had not taken FMLA leave.  On the contrary, the Court found it significant that FedEx previously terminated another employee, who had not taken FMLA leave, for violating the same policy against falsifying delivery records.

The Fourth Circuit also rejected Laing’s claim that FedEx did not restore to her the same or equivalent position she had held before she left.  On Laing’s first day back from her FMLA leave, FedEx immediately suspended her with pay for almost a month before terminating her.  Emphasizing that the FMLA did not afford Laing an absolute right to restoration, the Court concluded that the FMLA did not preclude FedEx from placing Laing on suspension upon her return from FMLA leave if it would have done the same had she not taken leave at all.

While Laing is a straightforward case, this case reminds us that employment laws should not render the worksite a “dour” place, and offers the following wise words: “there is a danger in allowing law to squeeze all informality from workplace interactions: every offhand expression of attempted humor need not plant the seed for a discrimination suit.”  Such are words to live by, in the world of employment law.

 

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