Fed Ex Courier Fired for 57 Suspicious Stops; No FMLA Claim, Fourth Circuit Holds

The Fourth Circuit Court of Appeals recently upheld the termination of a FedEx employee, Kimberly Laing, for repeated falsification of delivery records. FedEx’s investigation into Laing’s conduct overlapped with a knee injury she suffered on a delivery. She took time off under the Family Medical Leave Act (FMLA), and upon her return, was placed on administrative leave and then terminated for discrepancies between her delivery records and the destinations of her packages. The district court’s grant of summary judgment was appealed on the issue of pretext—whether summary judgment was proper given Laing’s efforts to prove that the reason for her termination was false and a cover up for retaliation against her for using the FMLA and to deprive her of her FMLA rights. The case is Laing v. Federal Express Corporation, Civil Action No. 11-2116 (4th Cir. 2013).

After being notified of Laing’s need for surgery, her supervisor reviewed her route trace reports.  In so doing, he found evidence that she may have been falsifying her records by claiming she had made deliveries to two different addresses at the same time and by making multiple stops to the same address instead of delivering the packages addressed to one location all at once. Fed-Ex began an investigation by conducting “check-rides” of Laing’s route. The investigation was interrupted by Laing’s request for FMLA leave, which was granted. The day she returned to work, she was placed on an investigatory suspension, receiving full pay until she was terminated a month later for falsifying her delivery records.

Laing alleged that she was discharged for taking medical leave and that the investigation into her delivery records was merely a pretext. The pretext analysis is the third step of the McDonnell Douglas framework for federal discrimination claims. In the first step, the plaintiff carries the burden of presenting a prima facie case.  For retaliation, this burden is satisfied by showing: (1) engagement in a protected activity; (2) adverse action by the employer; and (3) a causal relationship between the activity and the adverse employment action. The second step of the framework allows the employer the opportunity to present a “legitimate, nondiscriminatory reason” for the adverse employment action. In this case, FedEx presented the falsified delivery records. At this point, the burden of proof shifted back to Laing to show that FedEx’s reason for the termination was merely a pretext, or false excuse, used to fire her with discriminatory intent.

The court emphasized the value of comparator evidence in showing pretext.  This is evidence of the treatment of similarly-situated employees who, unlike plaintiff, had not exercised FMLA rights.  Laing could not point to any similarly-situated employee who did not exercise FMLA rights and was treated more favorably than she. In fact, the only similarly-situated employee described to the court was an individual who had not used FMLA and was also fired for falsifying delivery records.  Thus, the Fourth Circuit found Laing’s evidence of pretext insufficient and affirmed summary judgment dismissing her claims.

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