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Media Alerts - Fourth Circuit: Laing v. Federal Express Corporation
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February 20, 2013
  Fourth Circuit: Laing v. Federal Express Corporation
Case Name: Laing v. Federal Express Corporation

Headline: Injured FedEx Employee Not Entitled to Keep Job If She Would Have Been Terminated Regardless of Injury

Area of Law: Labor and Employment

Issue Presented: Whether an employee is entitled to her job after returning from leave for an injury where she would have been terminated regardless.

Brief Summary: Kimberly Laing, an employee of FedEx for twenty years, was injured while working as a residential courier. When Laing returned from surgery and leave under the Family Medical Leave Act ("FMLA"), she was suspended pending an investigation into whether she "padded her stats." Laing complained that she was being terminated in retaliation for taking time off. The U.S. Court of Appeals for the Fourth Circuit held that there was no direct evidence of discrimination against Laing and found that FedEx would have terminated Laing regardless of her injury because she had violated the company's zero-tolerance policy against padding stats. Accordingly, the Fourth Circuit concluded that Laing's rights were not violated under the FMLA.

Extended Summary: Kimberley Laing, a FedEx courier with twenty years of experience, sustained injuries following an on-the-job fall. Thereafter, Laing took time off from work for surgery and to recuperate. Laing alleged that prior to taking medical leave some employees joked with her, stating "we're going to do everything we can to get rid of your route while you're gone." Laing also complained that a FedEx Operations Manager refused to guarantee her job would be available upon her return. In the manager's view, the company was not "necessarily" required to keep the job available. The record also demonstrated that before Laing left for surgery, her supervisor informed her that FedEx was planning to investigate whether she "padded her stats." Specifically, Laing's supervisors noticed a recurring pattern of "gaining time," a term used to describe the practice of separately listing multiple deliveries to the same location to create the appearance of working longer hours. Laing was fired shortly after she returned from leave. In 2009, she sued FedEx, alleging that FedEx violated the Family Medical Leave Act ( 29 U.S.C. §2691 et seq.) when it terminated her employment.

Prior to trial, FedEx was granted summary judgment as to all of Laing's claims. On appeal, Laing raised two principle arguments: (1) that FedEx directly discriminated against her when it terminated her employment upon return from leave; and (2) that the Family Medical Leave Act requires an employee to be restored to the same or an equivalent position upon returning from medical leave.
On review, the Fourth Circuit first noted that Laing had failed to produce any direct evidence of discrimination. Specifically, the court noted that "there is a danger in allowing law to squeeze out all informality from workplace interactions," and concluded that the joking that Laing experienced prior to her leave was nothing more than jest. Moreover, the court noted that in failing to guarantee Laing's job upon her return from leave, the Operations Manager accurately described the FMLA because the FMLA did not "necessarily" require FedEx to keep Laing's job open.

Next, the court considered whether there was sufficient circumstantial evidence to find that FedEx discriminated against Laing. Because Laing was terminated on the day she returned from her leave, the court concluded there was an inference of discrimination. The court also found, however, that because similarly situated employees experienced similar treatment (namely an employee had recently been terminated by Laing's supervisors for the same reason as Laing), there was insufficient circumstantial evidence to find that FedEx discriminated against Laing. Moreover, the court noted that Fourth Circuit precedent made clear that an employee need not be restored to the same position if the employee would have been terminated regardless of the injury and regardless of the leave.
To read the full opinion, please visit:

Panel: Judges Wilkinson, King, and Shedd

Argument Date: 10/26/12

Date of Issued Opinion: 01/09/13

Docket Number: No. 11-2116

Decided: Affirmed by published opinion

Case Alert Author: Zachary S. Schultz

Counsel (if known): ARGUED: Jenny Lu Sharpe, SHARPE LAW OFFICE, Charlotte, North Carolina, for Appellant. Melissa Kimberly Hodges, FEDERAL EXPRESS CORPORATION, Memphis, Tennessee, for Appellee. ON BRIEF: Tamara W. Brooks, BROOKS LAW OFFICE, Charlotte, North Carolina, for Appellant.

Author of Opinion: Wilkinson, J.

Case Alert Circuit Supervisor: Professor Renée Hutchins

Edited: 02/22/2013 at 11:33 AM by Renee Hutchins

    Posted By: Renee Hutchins @ 02/20/2013 01:24 PM     4th Circuit  

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