When your manager tells you, “They’re making me do this,” make sure to ask why they’re making her do this.

Laing v. Federal Express Corporation, 703 F.3d 713 (4th Cir. 2013).  In Laing, the plaintiff lost her case in the trial court and on appeal. Both courts applied a legal standard whereby all facts had to be viewed and all reasonable inferences had to be drawn in the light most favorable to the plaintiff.

The plaintiff described the facts as follows: Ms. Laing worked for FedEx for over 19 years. In March of 2008, she fell and injured her knees. After nine months of unsuccessful treatment, she and her doctors told her supervisor at FedEx in December of 2008 that she would have to have surgery. Her surgery was finally scheduled for March 23, 2009, over a year after her accident. Laing went out on FMLA leave from March 19 until June 4.

Before she did, though, Laing had two conversations, first with FedEx Operations Manager Donnie Hicks, and then with Operations Manager Matt Bass. The plaintiff told Hicks that she was concerned whether or not she would still have her old route after returning from medical leave. Hicks replied, “Well, we’ll do our best to keep your job open for you.” Concerned, Laing, said, “Donnie, you know, with FMLA, you have to keep my job open for me.” Hicks answered, “That’s not necessarily the case. You don’t know how it works.”

More worried, Laing went to Matt Bass and asked him to “look out for me while I’m out.” Bass started laughing and said, “Oh, Kim, we’re going to do everything we can to get rid of your route while you’re gone.” He then added that he was “just kidding.”

When Laing returned on June 4, her supervisor, Carolyn Scott, met with her and told her that an investigation of Laing’s delivery records had revealed irregularities and that Laing would be placed on an investigatory suspension. Scott was noticeably crying during this conversation. When Laing asked, “Do you think I was padding my stops?” Scott responded, “No, I don’t. But they’re making me do this.” FedEx terminated Laing on June 30, 2009.

At this point we assume it comes as a shock to the reader that Laing lost her case. And it wasn’t even close: both courts – all in all four federal judges – unanimously held that no reasonable jury could have found for the plaintiff. The judges held that the facts dictated a win for FedEx. She couldn’t possibly have won.

How can this be?

The answer is: the court discarded the plaintiff’s evidence, and the defendant provided additional facts.

According to the defendant, in February of 2009, two months after Laing had notified FedEx that she would need surgery, Scott became concerned with Laing’s job performance – specifically, Scott suspected that Laing was falsifying time records to increase her wages. Scott took these concerns to her boss and, ultimately, to Human Resources which recommended an investigation by going on check-rides with Laing and reviewing her delivery records for suspicious activities. Before this could be done, however, Laing went out on medical leave.

FedEx conducted an investigation and concluded that Laing had falsified records. When she returned on June 4, 2009, Laing was suspended with pay and terminated on June 30.

The plaintiff argued to the court that her conversations with Hicks, Bass and Scott constituted “direct evidence” of FedEx’s discriminatory attitude. The court disagreed: Hicks’ statement, “That’s not necessarily the case,” disputing Laing’s statement that he had to keep her job open, was legally accurate and did not demonstrate a discriminatory attitude. The statement made by Bass, “Oh, Kim, we’re going to do everything we can to get rid of your route while you’re gone,” was inconclusive as well: the court felt that Bass had indeed been kidding when he made this statement. And the court concluded that no reasonable jury could see his statement, humorous or not, as direct evidence since Bass had never suggested that Laing’s route might be changed because she was taking FMLA leave, rather than for some other, lawful reason. The court found the same true with regard to the statement by Scott that “Donnie [Hicks] is making me do this.” According to the court this statement did not 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.

The court declared that evidence is “direct” only when the manager explains in sufficient detail that the decision to terminate the plaintiff is based on an unlawful motive – , “Oh, Kim, we’re going to do everything we can to get rid of your route while you’re gone,” was inconclusive because Bass did not say, “… because you are taking FMLA leave.” “Donnie [Hicks] is making me do this,” was not direct evidence because it did not explain why Hicks was forcing Scott to terminate Laing. Direct evidence would state: “Donnie [Hicks] is making me do this because you took FMLA leave.”

The court ultimately found for FedEx on summary judgment because Laing was unable to show that the reason offered by FedEx for her termination – the irregularity of time records – was pretext. Laing’s attempt to explain her time records was unsuccessful: FedEx did not have to show that its reason was wise, fair or even correct, so long as its reason for her termination was the true reason.

“Direct” evidence in this Circuit continues to be exceedingly rare: it is difficult to imagine an employer who not only admits to the plaintiff that she will be terminated right after returning from medical leave, but who further admits that the termination will be issued because of the medical leave.

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