Kimberly Laing v. Federal Express Corporation , 703 F.3d 713 ( 2013 )

PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
KIMBERLY LAING, 
Plaintiff-Appellant,
v.  No. 11-2116
FEDERAL EXPRESS CORPORATION,
Defendant-Appellee.

Appeal from the United States District Court
for the Western District of North Carolina, at Charlotte.
Graham C. Mullen, Senior District Judge.
(3:10-cv-00242-GCM)
Argued: October 26, 2012
Decided: January 9, 2013
Before WILKINSON, KING, and SHEDD, Circuit Judges.
Affirmed by published opinion. Judge Wilkinson wrote the
opinion, in which Judge King and Judge Shedd joined.
COUNSEL
ARGUED: Jenny Lu Sharpe, SHARPE LAW OFFICE, Char-
lotte, North Carolina, for Appellant. Melissa Kimberly
Hodges, FEDERAL EXPRESS CORPORATION, Memphis,
Tennessee, for Appellee. ON BRIEF: Tamara W. Brooks,
2 LAING v. FEDERAL EXPRESS CORPORATION
BROOKS LAW OFFICE, Charlotte, North Carolina, for
Appellant.
OPINION
WILKINSON, Circuit Judge:
Appellant Kimberly Laing claims that Federal Express Cor-
poration ("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 employ-
ment 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 (2000).
A.
On March 17, 2008, Laing was making a residential deliv-
ery for FedEx when she fell on uneven pavement and landed
LAING v. FEDERAL EXPRESS CORPORATION 3
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 sub-
sequent visit with an orthopedic specialist revealed that
Laing’s right knee had suffered significant damage. In
December 2008, the orthopedic specialist wrote a note order-
ing surgery on Laing’s knee, which Laing provided to her
supervisor, Carolyn Scott.
In mid-February 2009, some two months after being noti-
fied that Laing would need surgery (but before Laing sched-
uled 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 deliv-
ery 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
4 LAING v. FEDERAL EXPRESS CORPORATION
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 necessar-
ily 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 deliv-
eries in particular, Scott consulted MapQuest and determined
that given the distance between the addresses identified in
LAING v. FEDERAL EXPRESS CORPORATION 5
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 suspen-
sion.
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 sus-
pended.
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 deliv-
ered] 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 deter-
mined that you violated the Acceptable Conduct Pol-
icy 2-5 by falsifying your electronic record. . . .
6 LAING v. FEDERAL EXPRESS CORPORATION
Based on these findings, your employment with Fed-
eral 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 dis-
charge through FedEx’s appeals process, that effort ultimately
proved unsuccessful.
B.
In April 2010, Laing filed suit in state court alleging vari-
ous 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 dis-
charged 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 unlaw-
ful by this chapter." Laing also claimed that FedEx violated
29 U.S.C. § 2615(a)(1), which prohibits employers from "in-
terfer[ing] with, restrain[ing], or deny[ing] the exercise of"
any right provided by the FMLA. Specifically, Laing con-
tended 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 Defen-
dant FedEx’s reasons for termination are pretextual." J.A. at
LAING v. FEDERAL EXPRESS CORPORATION 7
1352. In particular, the court noted that FedEx provided "vo-
luminous 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
failed to create a "genuine dispute over whether she was ter-
minated for exercising her FMLA rights." Id. at 1353. Nota-
bly, the court did not discuss whether discriminatory motive
could be inferred on the basis of similarly situated FedEx
employees who received differential treatment because Laing
did not identify any such comparator evidence in her opposi-
tion to summary judgment.
The district court also held that FedEx had not denied
Laing’s right to be restored to an equivalent position. Id. at
1347. The court noted that FedEx placed Laing on investiga-
tory suspension on the very morning that she returned from
leave. Id. at 1343. But the court ruled that this did not create
a triable issue on Laing’s equivalent position claim because
she was classified as a full-time employee and received full-
time pay until her termination. Id. at 1348.
Laing then filed this appeal, challenging the district court’s
grant of summary judgment on the aforementioned claims.
II.
Laing’s principal argument on appeal is that FedEx violated
the FMLA when it retaliated against her by suspending and
discharging her for taking medical leave. See 29 U.S.C.
§ 2615(a); see also 29 C.F.R. § 825.220(c) ("[E]mployers
cannot use the taking of FMLA leave as a negative factor in
employment actions."). FMLA retaliation claims are analo-
gous to discrimination claims brought under Title VII. Yas-
henko v. Harrah’s N.C. Casino Co., 446 F.3d 541, 551 (4th
Cir. 2006). Thus, a plaintiff may succeed either by providing
8 LAING v. FEDERAL EXPRESS CORPORATION
direct evidence of discrimination or by satisfying the burden-
shifting framework set forth in McDonnell Douglas Corp. v.
Green, 411 U.S. 792 (1973). See Diamond v. Colonial Life &
Accident Ins. Co., 416 F.3d 310, 318 n.4 (4th Cir. 2005).
Laing contends that her claim should survive summary judg-
ment under both approaches, so we consider each in turn.
Laing argues first that summary judgment was inappropri-
ate because she introduced direct evidence that FedEx dis-
criminated against her for taking protected FMLA leave.
Direct evidence encompasses "conduct or statements" that
both (1) "reflect directly the alleged discriminatory attitude,"
and (2) "bear directly on the contested employment decision."
Warch v. Ohio Cas. Ins. Co., 435 F.3d 510, 520 (4th Cir.
2006) (internal quotation marks omitted).
Laing first points to a purported conversation she had with
Operations Manager Donnie Hicks. She contends that Hicks
directly displayed a discriminatory attitude when, upon being
asked whether Laing’s FMLA leave would be a problem, he
responded, "Well, we’ll do our best to keep your job open for
you." Then, when Laing told Hicks that he "ha[d] to keep
[her] job open" under the FMLA, Laing states that Hicks
replied, "That’s not necessarily the case. You don’t know how
it works."
We do not see how a reasonable jury could construe these
comments to be evidence of a discriminatory attitude. Hicks’s
response to Laing’s question—"we’ll do our best to keep your
job open for you"—hardly indicates animus against her
FMLA leave. If anything, it suggests exactly the opposite.
Nor did Hicks demonstrate a discriminatory attitude when he
accurately explained that the FMLA did not "necessarily"
require the company to keep Laing’s job open. As we held in
Yashenko, the FMLA does not provide employees with "an
absolute right to restoration . . . rather, an employer may deny
restoration when it can show that it would have discharged the
LAING v. FEDERAL EXPRESS CORPORATION 9
employee in any event regardless of the leave." 446 F.3d at
548.
Laing next points to a comment made by another Opera-
tions Manager, Matt Bass. Laing states that after she asked
Bass to "look out for me while I’m out" on leave, Bass laugh-
ingly responded, "Oh, Kim, we’re going to do everything we
can to get rid of your route while you’re gone." Laing
acknowledges that Bass added, "Oh, I’m just kidding," after
making this comment, but she insists that she did not believe
the statement was only a joke.
To begin with, 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. While some such remarks may be hurtful
and decidedly not funny, neither should a worksite become a
dour place to be. In any event, even if a reasonable jury would
credit Laing’s belief that Bass’s statement was not a joke, we
conclude that it would not find Bass’s comment to be direct
evidence of discriminatory animus. The comment did not
reflect a discriminatory attitude—that is, Bass never sug-
gested that Laing’s route might be changed because she was
taking FMLA leave, rather than for some other, lawful reason.
Indeed, Laing herself testified that during her twenty-one
years at the station, delivery routes were changed frequently
due to evolving operational needs, that her own route had
accordingly changed several times, and that she had person-
ally assisted in efforts to reallocate delivery routes. To say
this sort of passing and lighthearted comment serves as direct
evidence of discrimination would require us to impart to it a
sinister character that Laing’s own description appears to belie.1
1
Nor does Carolyn Scott’s disputed statement that "Donnie [Hicks] is
making me do this" provide the slightest indication that the reason why
Hicks was asking Scott to suspend Laing was due to her FMLA leave as
opposed to some other lawful reason, namely her deliberate falsification
of delivery records. Neither can it be said that Station Manager Wade
10 LAING v. FEDERAL EXPRESS CORPORATION
III.
Without the benefit of direct evidence to support her claim,
Laing next seeks to rely on circumstantial evidence under the
McDonnell Douglas burden-shifting framework, 411 U.S. at
802-04. See also St. Mary’s Honor Ctr. v. Hicks, 509 U.S.
502, 506-07 (1993); Tex. Dep’t of Cmty. Affairs v. Burdine,
450 U.S. 248, 252-53 (1981). We discuss at the outset one of
the most salient aspects of that framework—comparator
evidence—before applying the framework to Laing’s case.
A.
Ever since the Supreme Court’s watershed decision in
McDonnell Douglas, courts have considered comparator evi-
dence to be a particularly probative means for discerning
whether a given adverse action was the product of a discrimi-
natory motive. McDonnell Douglas, of course, set forth the
evidentiary burden-shifting framework that has become in
large measure a judicial playbook for evaluating discrimina-
tion claims. Under that framework, the initial burden rests on
the plaintiff to make out a prima facie case of discrimination.
411 U.S. at 802. If the plaintiff does so, the burden shifts to
the employer to articulate a nondiscriminatory reason for its
action. Id. The plaintiff is then afforded an opportunity to
prove that the employer’s explanation "was in fact pretext."
Id. at 804. And it is at this third step that McDonnell Douglas
identified the significance of comparator evidence: the Court
explained that "especially relevant" to a showing of pretext
would be evidence that other employees who were similarly
situated to the plaintiff (but for the protected characteristic)
were treated more favorably. Id.
Dark’s concern about Laing’s workday therapy sessions interfering with
her productivity bore on FedEx’s decision to terminate her. Any such
innocuous statement was made nearly a year before Laing even took her
FMLA leave for her surgery and more than a year before FedEx’s decision
to terminate her.
LAING v. FEDERAL EXPRESS CORPORATION 11
Heeding this instruction, federal courts now routinely rely
on comparator evidence when deciding whether an adverse
employment action was driven by a discriminatory motive.
See, e.g., Lightner v. City of Wilmington, 545 F.3d 260, 265
(4th Cir. 2008); Waterhouse v. District of Columbia, 298 F.3d
989, 995-96 (D.C. Cir. 2002); Kendrick v. Penske Transp.
Servs., 220 F.3d 1220, 1232-34 (10th Cir. 2000). One com-
mentator has gone so far as to observe that comparator evi-
dence has become a "defining element of discrimination law."
Suzanne B. Goldberg, Discrimination by Comparison, 120
Yale L.J. 728, 750 (2011).
That comparator evidence should prove especially useful in
discrimination cases makes sense for several reasons. To start,
the very term "discrimination" invokes the notion of treating
two persons differently on the basis of a certain characteristic
that only one possesses. One dictionary, for instance, defines
"discrimination" to mean "treatment or consideration of, or
making a distinction in favor of or against, a person or thing
based on the group, class, or category to which that person or
thing belongs." Random House Dictionary of the English Lan-
guage 564 (2d ed. 1987). Thus, "the ordinary interpretation
and meaning of the term [discrimination]" implies that a
plaintiff has "‘received differential treatment vis-á-vis mem-
bers of a different group on the basis of a statutorily described
characteristic.’" Olmstead v. L.C. ex rel. Zimring, 527 U.S.
581, 611 (1999) (Kennedy, J., concurring) (quoting id. at 616
(Thomas, J., dissenting)). Conversely, similar treatment of
similarly situated individuals is what anti-discrimination stat-
utes aspire to achieve.
Reliance on comparator evidence is also sensible for func-
tional reasons. That is to say, the task of identifying whether
an employer has treated more favorably a person who is situ-
ated similarly to the plaintiff (but for the characteristic at
issue) is a relatively straightforward and manageable inquiry.
But the same might not be said for other modes of proof. See
Charles A. Sullivan, The Phoenix from the Ash: Proving Dis-
12 LAING v. FEDERAL EXPRESS CORPORATION
crimination by Comparators, 60 Ala. L. Rev. 191, 192 (2009)
(describing comparator evidence as a "simpler, more direct
method of establishing discrimination"). Consider, for exam-
ple, the complexity of the evidence approved by the Supreme
Court in Oncale v. Sundowner Offshore Services, Inc., which
held that in the context of sex discrimination claims based on
sexual harassment (where comparator evidence is not para-
mount), a decision should be based on "all the circum-
stances," including the "constellation of surrounding
circumstances, expectations, and relationships which are not
fully captured by a simple recitation of the words used or the
physical acts performed." 523 U.S. 75, 81-82 (1998) (internal
quotation marks omitted).
Moreover, unlike a free-form evaluation of the "constella-
tion" of contextual considerations that might inform whether
a particular workplace decision was unlawfully motivated,
comparator evidence is more objective in nature. See Gold-
berg, supra, at 794 (noting that comparator evidence has "an
empirical cast to it—it documents, from facts, the different
treatment and, by implication, the discriminatory intent").
Adjudicating discrimination claims based on comparator evi-
dence thus mitigates the risk of judges inserting their own
subjective value judgments in place of facts and settled law.
The Supreme Court has recognized this concern, too, noting
its approval in County of Washington v. Gunther of a discrim-
ination claim that did "not require a court to make its own
subjective assessment of the value of" certain male and
female employees. 452 U.S. 161, 181 (1981).
This is not to say that comparator evidence is the final
answer in discrimination law. Disputes abound as to who is
a valid comparator and who is not. And notwithstanding the
virtues of comparator evidence, it of course remains the case
that a plaintiff is "not required as a matter of law to point to
a similarly situated . . . comparator in order to succeed" on a
discrimination claim. Bryant v. Aiken Reg’l Med. Ctrs., Inc.,
333 F.3d 536, 545 (4th Cir. 2003). But the fact remains that
LAING v. FEDERAL EXPRESS CORPORATION 13
such evidence has a useful place. In cases where an employer
adduces a nondiscriminatory reason for discharging the plain-
tiff and comparator evidence does not exist to rebut that
explanation, the plaintiff must be able to point persuasively to
some other form of evidence demonstrating that the employ-
er’s explanation was a mere pretext for discrimination. With
this in mind, we turn to the evidence presented in this case.
B.
At the first step of the McDonnell Douglas framework,
Laing argues that she has met her prima facie burden of show-
ing that (1) she engaged in a protected activity; (2) FedEx
took adverse action against her; and (3) a causal nexus exists
between the protected activity and the adverse action. See
Yashenko, 446 F.3d at 551. We agree. With regard to the first
two prongs, there is no dispute that Laing engaged in pro-
tected activity when she took FMLA leave and that FedEx
took adverse action by suspending and terminating her
employment. With respect to the third prong, the close tempo-
ral proximity between the two—Laing was suspended on the
morning of her return from medical leave and terminated
within the month—is sufficient to establish the requisite
causal nexus. See id.
Because Laing established her prima facie case, the burden
shifts to FedEx to articulate a "legitimate, nondiscriminatory
reason for" suspending and terminating her. McDonnell
Douglas, 411 U.S. at 802. We conclude that this burden has
been satisfied, too, as FedEx has explained that Laing was
suspended and terminated due to her repeated violation of the
company’s "zero-tolerance" Acceptable Conduct Policy. As
the company’s termination letter indicates, Laing was dis-
charged on the basis of an investigation that concluded that
she had engaged in a "demonstrated pattern" of falsifying
records. The letter identified numerous instances in which
Laing "gained time" or "padded stops" by, for example, stop-
ping at a location and entering a code stating that no delivery
14 LAING v. FEDERAL EXPRESS CORPORATION
could be made, only to return soon after and enter a code stat-
ing that a delivery was completed. The letter also noted sev-
eral instances in which Laing falsified records by claiming to
make multiple deliveries to locations miles apart from one
another at the same time. There is no dispute that such con-
duct is prohibited by FedEx’s Acceptable Conduct Policy.
Moreover, it is further undisputed that Laing was aware of the
Acceptable Conduct Policy and that violations of the policy
are punishable by termination. It is hard to see how it could
be otherwise, for the honest reporting of deliveries goes to the
heart of FedEx’s entire business enterprise.
Faced with this nondiscriminatory explanation for her ter-
mination, Laing bears the burden of establishing at step three
of the McDonnell Douglas framework that FedEx’s "prof-
fered explanation is pretext for FMLA retaliation." Nichols v.
Ashland Hosp. Corp., 251 F.3d 496, 502 (4th Cir. 2001).
Laing has not satisfied this burden. Significantly, Laing has
not identified any similarly situated FedEx employee—that is,
an employee accused of violating the same company policy
but who did not take FMLA leave—who was given more
favorable treatment. Such comparator evidence, of course,
would be "especially relevant" to a showing of pretext, but
Laing has none. McDonnell Douglas, 411 U.S. at 804.
In fact, the only comparator evidence in the record supports
FedEx’s nondiscriminatory explanation for why it terminated
Laing. In September 2008, just five months before the investi-
gation into Laing’s activity commenced and nine months
before Laing’s termination, Station Manager Wade Dark and
Human Resources Manager Gregg Taylor (both of whom
were involved in Laing’s discharge) fired another employee,
James Lawton, for violating the same company policy even
though Lawton had not taken FMLA leave. Like Laing, Law-
ton was found to have falsified his delivery records by claim-
ing to deliver packages to different addresses miles apart at
the exact same time and by delivering multiple packages to
the same address at different times instead of delivering them
LAING v. FEDERAL EXPRESS CORPORATION 15
all at once. And the record shows that FedEx treated Lawton
and Laing virtually identically: FedEx investigated both by
reviewing their route reports and MapQuest maps for suspi-
cious activity. Once it became clear that the reports revealed
a pattern of falsification, both were placed on investigative
suspension with pay and given an opportunity to submit a
written statement; and both were afforded the chance to use
FedEx’s internal appeals process after they were terminated.
Without comparator evidence to support her cause, Laing’s
principal argument that FedEx’s stated reason for terminating
her was pretextual is that she "presented a plausible explana-
tion for each of the deliveries FedEx alleged were indicative
of falsification." Specifically, Laing points to a declaration in
which she offers an explanation for fifty-seven suspicious
delivery stops that FedEx identified as evidence of falsifica-
tion between March 3 and March 20, 2009. For example, in
response to FedEx’s accusation that she "gained 19 minutes"
by making three separate deliveries to the same address
between 2:05 pm and 2:24 pm on March 13, 2009, Laing
argues that she did in fact make three deliveries at the listed
times because each delivery involved a "large box" that had
to be delivered separately "up a very steep driveway" into a
locked building.
In offering her various explanations for the underlying con-
duct that led to her termination, however, Laing misunder-
stands the purpose of the pretext inquiry. "[W]hen an
employer gives a legitimate, nondiscriminatory reason for dis-
charging the plaintiff, it is not our province to decide whether
the reason was wise, fair, or even correct, ultimately, so long
as it truly was the reason for the plaintiff’s termination." Haw-
kins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (inter-
nal quotation marks omitted). In other words, in attempting to
defend the conduct that led to her termination, all Laing has
proven is the unexceptional fact that she disagrees with the
outcome of FedEx’s investigation. But such disagreement
does not prove that FedEx’s decision to fire her for falsifying
16 LAING v. FEDERAL EXPRESS CORPORATION
her records was "dishonest or not the real reason for her ter-
mination," which is what is required at step three of the
burden-shifting framework. Id. at 280. While Laing contends
that Carolyn Scott, her immediate supervisor, did not think
that Laing’s falsified delivery records were the real reason for
her termination, the district court noted that Laing "never dis-
putes that the suspicious [trace] reports are in fact unaccept-
able under company policy, but merely provides explanations
for why her record is unusual." J.A. 1352.
To be clear, if FedEx’s disciplinary action had been based
on little evidence of wrongdoing, a genuine issue might exist
as to pretext. But Laing does not even argue as much—she
only claims that she has provided a "plausible" explanation
for the numerous suspicious delivery records identified by
FedEx. That is not enough to support a reasonable jury find-
ing of pretext, however, as "we do not sit to appraise
[FedEx’s] appraisal" of the falsification evidence against
Laing. Hawkins, 203 F.3d at 280. There is no genuine dispute
that her delivery reports violated company policy, or that the
company was somehow wrongly motivated in believing this
to be the case.
Our disposition of this case is, at bottom, mindful of the
Supreme Court’s instruction that the "ultimate question" in
any discrimination case is the existence of "discrimination vel
non." U.S. Postal Serv. Bd. of Governors. v. Aikens, 460 U.S.
711, 714 (1983). We have thus previously cautioned that
courts should "resist the temptation to become so entwined in
the intricacies of the proof scheme that they forget that the
scheme exists solely to facilitate determination" of that ulti-
mate question. Proud v. Stone, 945 F.2d 796, 798 (4th Cir.
1991).
Stepping back to answer the ultimate question in this case,
we think it plain that Laing has failed to establish a "genuine,
triable issue," Celotex Corp. v. Catrett, 477 U.S. 317, 327
(1986), as to whether FedEx discriminated against her. There
LAING v. FEDERAL EXPRESS CORPORATION 17
is considerable evidence that Laing violated a clearly commu-
nicated company policy forbidding delivery records
falsification—a policy upon which FedEx’s commercial via-
bility depends. There is also considerable evidence that the
company genuinely believed in this reason for terminating
Laing. And perhaps most importantly, not only did Laing fail
to adduce any comparator evidence in her favor, but the only
comparator identified in the summary judgment record, James
Lawton, was treated in the exact same manner as Laing after
violating the exact same company policy in the exact same
way—even though he did not take FMLA leave. Thus, the
company investigated both Laing and Lawton by reviewing
their route reports and MapQuest maps; placed both employ-
ees on investigative suspension; gave both employees an
opportunity to write a written statement; and ultimately termi-
nated both employees based on the evidence of document fal-
sification. We therefore affirm the award of summary
judgment in favor of FedEx on Laing’s retaliation claim.
IV.
Laing next contends that FedEx denied her right under the
FMLA to be restored upon her return from leave to either the
same position that she held before her leave or an equivalent
one. See 29 U.S.C. § 2614(a)(1). Specifically, Laing argues
that instead of restoring her to an equivalent position, FedEx
suspended her employment, required her to surrender her
company ID, and prohibited her from entering FedEx prop-
erty.
We affirm the award of summary judgment in FedEx’s
favor on this claim, too, albeit under a different rationale than
the one provided by the district court. The district court held
that FedEx did not deny Laing’s right to be restored to an
equivalent position because even though she was suspended,
Laing remained "a full time employee" and "received full
time pay" until her termination. J.A. at 1348. But that reason-
18 LAING v. FEDERAL EXPRESS CORPORATION
ing is inconsistent with the plain text of the statute and the rel-
evant regulation.
The FMLA entitles an employee to be restored to a position
that is equivalent not just in terms of pay and full-time status,
but also one that is equivalent in terms of "benefits . . . and
other terms and conditions of employment." 29 U.S.C. §
2614(a)(1)(B). The applicable regulation, 29 C.F.R. §
825.215(a), clarifies that an "equivalent position" is one that
is "virtually identical to the employee’s former position in
terms of pay, benefits and working conditions, including priv-
ileges, perquisites and status. It must involve the same or sub-
stantially similar duties and responsibilities." Whatever may
be said about FedEx’s decision to pay Laing at a full-time rate
during her suspension, it cannot be said that her suspended
status—during which she was stripped of all work responsi-
bilities and prohibited from entering FedEx property—
encompassed "terms and conditions of employment" equiva-
lent to those which she enjoyed before her leave, much less
"virtually identical . . . privileges [and] perquisites," and "sub-
stantially similar duties and responsibilities."
FedEx is nonetheless entitled to summary judgment on
Laing’s equivalent position claim because the FMLA does not
afford Laing an "absolute right to restoration." Yashenko, 446
F.3d at 549. As we held in Yashenko, "the FMLA does not
require an employee to be restored to his prior job after
FMLA leave if he would have been discharged had he not
taken leave." Id. at 547. The FMLA in fact provides that
"[n]othing in this section shall be construed to entitle any
restored employee to . . . any right, benefit, or position of
employment other than [one] to which the employee would
have been entitled had the employee not taken the leave." 29
U.S.C. § 2614(a)(3)(B); see also 29 C.F.R. § 825.216(a) ("An
employee has no greater right to reinstatement . . . than if the
employee had been continuously employed during the FMLA
leave period."). In sum, the FMLA does not preclude an
employer from placing an employee on an investigatory sus-
LAING v. FEDERAL EXPRESS CORPORATION 19
pension upon her return from medical leave if it would have
taken the same action had the employee never taken leave in
the first place.
Here, FedEx has introduced ample evidence that it would
have suspended Laing based on her many violations of the
company’s falsification policy, regardless of whether she had
taken FMLA leave. The investigation into Laing’s misconduct
(which led to her suspension) began in mid-February 2009,
before she applied for FMLA leave on March 19. The evi-
dence that the investigation uncovered—Laing’s numerous
instances of padding stops and claiming simultaneous deliver-
ies to different addresses miles apart—has been canvassed
earlier, and we see no need to repeat it here.
We accordingly affirm the district court’s award of sum-
mary judgment to FedEx on Laing’s equivalent position
claim.
V.
For the foregoing reasons, the judgment of the district court
is affirmed.
AFFIRMED