Laing v. Fed. Express Corp.

• Decision Date: 09 January 2013
• Docket Number: No. 11–2116.,11–2116.
• Citation: 703 F.3d 713
• Parties: Kimberly LAING, Plaintiff–Appellant, v. FEDERAL EXPRESS CORPORATION, Defendant–Appellee.
• Court: U.S. Court of Appeals — Fourth Circuit

703 F.3d 713

Kimberly LAING, Plaintiff–Appellant,

v.FEDERAL EXPRESS CORPORATION, Defendant–Appellee.

No. 11–2116.

United States Court of Appeals,Fourth Circuit.

Argued: Oct. 26, 2012.

Decided: Jan. 9, 2013.

ARGUED:Jenny Lu Sharpe, Sharpe Law Office, Charlotte, NC, for Appellant. Melissa Kimberly Hodges, Federal Express Corporation, Memphis, TN, for Appellee. ON BRIEF:Tamara W. Brooks, Brooks Law Office, Charlotte, NC, for Appellant.

Before WILKINSON, KING, and SHEDD, Circuit Judges.

Affirmed by published opinion. Judge WILKINSON wrote the opinion, in which Judge KING and Judge SHEDD joined.

OPINION

WILKINSON, Circuit Judge:

Appellant Kimberly Laing claims that Federal Express Corporation (“FedEx”) violated the Family Medical Leave Act (“FMLA”), 29 U.S.C. § 2601 et seq., by terminating her employment in retaliation for her decision to take medical leave and by failing to restore her to an equivalent position upon her return from leave. The district court granted FedEx's motion for summary judgment, dismissing both claims. Because Laing fails to point to any evidence that FedEx treated similarly situated employees who had not taken FMLA leave more favorably, and because the record shows that FedEx would have suspended and terminated her employment regardless of her decision to take leave, we affirm the judgment.

I.

Laing worked for FedEx as a mail courier in Charlotte, North Carolina, from June 4, 1988, until June 30, 2009, when her employment was terminated. The facts that follow describe the circumstances leading to her termination. Because the district court awarded summary judgment to FedEx, we view the evidence and draw reasonable inferences in the light most favorable to Laing. See Reeves v. Sanderson Plumbing Prods., Inc., 530 U.S. 133, 150–51, 120 S.Ct. 2097, 147 L.Ed.2d 105 (2000).

A.

On March 17, 2008, Laing was making a residential delivery for FedEx when she fell on uneven pavement and landed hard on her knees. The fall left her knees swollen for weeks and made it difficult to walk without a limp. After physical therapy did little to improve her condition, an MRI and a subsequent visit with an orthopedic specialist revealed that Laing's right knee had suffered significant damage. In December 2008, the orthopedic specialist wrote a note ordering surgery on Laing's knee, which Laing provided to her supervisor, Carolyn Scott.

In mid-February 2009, some two months after being notified that Laing would need surgery (but before Laing scheduled her surgery or applied for FMLA leave), Scott became concerned with Laing's job performance. Specifically, while reviewing Laing's route trace reports in an effort to increase her efficiency, Scott found evidence that Laing may have been falsifying her delivery records in two distinct ways. First, Scott noticed entries in Laing's route reports indicating that she had made deliveries to “two different addresses at the exact same time.” Second, Scott found evidence that Laing may have been “gaining time,” a term used by FedEx to describe deceptive acts such as making multiple stops to one address to deliver multiple packages (rather than delivering the packages all at one time) in order to artificially enhance the courier's pay or performance.

Scott took this evidence to her boss, Wade Dark, who directed her to bring it to the company's Human Resources Manager, Gregg Taylor. After examining Laing's route reports, Taylor instructed Scott to commence an investigation by going on check-rides with Laing and reviewing her delivery records for suspicious activity over the next thirty days. Before Scott could conclude the investigation, however, Laing received a phone call from her doctor on March 15, 2009, scheduling her knee surgery for March 23. Laing then applied for FMLA leave for the surgery, which was granted on March 19, 2009.

Laing became concerned, however, that she might lose her delivery route or her job while on leave. She expressed this concern to a FedEx Operations Manager, Donnie Hicks, on March 17, 2009, asking whether her medical leave would “be a problem.” According to Laing, Hicks replied, “well, we'll do our best to keep your job open for you,” to which Laing said, “Donnie, you know, with FMLA, you have to keep my job open for me.” Hicks then answered, “That's not necessarily the case. You don't know how it works.”

With her concerns still unresolved, Laing testified that on her final day at work before her leave, she asked another of the office's Operations Managers, Matt Bass, to “look out for me while I'm out.” Bass then responded, “Oh, Kim, we're going to do everything we can to get rid of your route while you're gone.” Laing states that Bass laughed after he made this comment and added, “Oh, I'm just kidding.” Nonetheless, Laing says that she did not believe Bass was only kidding.

Laing also states that she called the station during her leave and was informed that Hicks, not Scott, was to be her new supervisor. Laing then spoke with Hicks, who informed her that he had dissolved her regular route and replaced it with a part-time route. Laing responded by complaining to a FedEx Human Capital Manager, Stan Tolliver, who assured her that her original route would be reinstated when she returned from leave. Laing says she also spoke with Carolyn Scott on the evening before her return to work and that Scott informed her that she would “run [he]r same route, as [she] always ha[d].”

Nevertheless, when Laing returned to work on June 4, 2009, Scott asked Laing to come into her office. By this point, the company had finished its investigation into her delivery records, reaching the conclusion that Laing had engaged in a pattern of records falsification by both “padding stops” (a phrase used interchangeably with “gaining time”) and by claiming to make multiple simultaneous deliveries to different addresses miles apart. With respect to the simultaneous deliveries in particular, Scott consulted MapQuest and determined that given the distance between the addresses identified in Laing's reports, there was no way Laing could have made the deliveries at the times indicated. Accordingly, Scott told Laing that she would be placed on an investigatory suspension.

Although Scott disputes this portion of Laing's testimony, Laing claims that Scott was “noticeably crying” during this conversation. Laing also claims that she asked, “Carolyn, do you think that I padded my stops?” According to Laing, Scott replied, “No, I don't. But they're making me do this. Donnie is making me do this.” Scott then insisted that Laing write a statement responding to the charges, although Laing says she was forbidden from seeing the records that were the basis of the accusations. Laing received full pay while she was suspended.

FedEx terminated Laing's employment on June 30, 2009. The official termination letter stated as follows:

Our investigation found a demonstrated pattern of gaining time.... On 3/3/09, records show a gain of 26 minutes for one stop. There were four more examples of returning to the same stops, entering a [code stating that a package could not be delivered] and then a [code stating that a package was delivered] or a number of [such successful delivery codes] for the same stop. Similar patterns surfaced on 3/04/09, 3/05/09, 3/06/09, 3/09/09, 3/10/09 (at 3 different stops at the same time), 3/11/09, 3/13/09 (gained 19 minutes) ... 3/17/09 (two stops 1 minute apart, MAPQUEST noted it takes 7 minutes of drive time), 3/18/09 (gained 22 minutes for one stop, two stops 1 minute apart, MAPQUEST noted it takes 6 minutes of drive time)....

As a result of the investigation, it has been determined that you violated the Acceptable Conduct Policy 2–5 by falsifying your electronic record....

Based on these findings, your employment with Federal Express is terminated, effective June 30th, 2009.

There is no dispute that Laing was aware of the Acceptable Conduct Policy, which provides for the discharge of an employee who engages in “deliberate falsification of ... delivery records.” In fact, FedEx had terminated Laing for violating the same policy in 2005, though that decision was later overturned during FedEx's internal appeals process. And although Laing also sought to overturn her June 2009 discharge through FedEx's appeals process, that effort ultimately proved unsuccessful.

B.

In April 2010, Laing filed suit in state court alleging various violations of the FMLA and North Carolina law. FedEx removed the case to the U.S. District Court for the Western District of North Carolina.

As relevant to this appeal, Laing alleged that FedEx discharged her in retaliation for taking FMLA leave, in violation of 29 U.S.C. § 2615(a)(2), which makes it unlawful for “any employer to discharge or in any other manner discriminate against any individual for opposing any practice made unlawful by this chapter.” Laing also claimed that FedEx violated 29 U.S.C. § 2615(a)(1), which prohibits employers from “interfer[ing] with, restrain[ing], or deny[ing] the exercise of” any right provided by the FMLA. Specifically, Laing contended that FedEx denied her right under 29 U.S.C. § 2614(a)(1) to be restored to either the same position she held prior to her leave or to an “equivalent position.”

The district court granted summary judgment to FedEx on both claims. With respect to the retaliatory discharge claim, the court held that although Laing had established a prima facie case of discrimination, she “failed to show that Defendant FedEx's reasons for termination are pretextual.” J.A. at 1352. In particular, the court noted that FedEx provided “voluminous evidence through the [route] reports of what [FedEx] considers to be termination-worthy falsification of company records.” Id. While Laing “provide[d] explanations for why” she believed her delivery records were “unusual,” she did not dispute that her records were “in fact unacceptable under company policy.” Id. The court thus held that Laing had...