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, 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.

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 (2000).

A.

On March 17, 2008, Laing was making a residential delivery for FedEx when she fell on uneven pavement and landed

2 LAING v. FEDERAL EXPRESS CORPORATION
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

LAING v. FEDERAL EXPRESS CORPORATION 3
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

4 LAING v. FEDERAL EXPRESS CORPORATION
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. . . .

LAING v. FEDERAL EXPRESS CORPORATION 5
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

6 LAING v. FEDERAL EXPRESS CORPORATION
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

failed to create a "genuine dispute over whether she was terminated for exercising her FMLA rights." Id. at 1353. Notably, 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 opposition 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 investigatory 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 fulltime 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 analogous to discrimination claims brought under Title VII. Yashenko v. Harrah’s N.C. Casino Co., 446 F.3d 541, 551 (4th

Cir. 2006). Thus, a plaintiff may succeed either by providing

LAING v. FEDERAL EXPRESS CORPORATION 7
direct evidence of discrimination or by satisfying the burdenshifting 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 judgment under both approaches, so we consider each in turn. 

Laing argues first that summary judgment was inappropriate because she introduced direct evidence that FedEx discriminated 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

8 LAING v. FEDERAL EXPRESS CORPORATION
employee in any event regardless of the leave." 446 F.3d at

548.

Laing next points to a comment made by another Operations Manager, Matt Bass. Laing states that after she asked

Bass to "look out for me while I’m out" on leave, Bass laughingly 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 suggested 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 personally 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

1Nor 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

LAING v. FEDERAL EXPRESS CORPORATION 9
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 evidence to be a particularly probative means for discerning

whether a given adverse action was the product of a discriminatory motive. McDonnell Douglas, of course, set forth the

evidentiary burden-shifting framework that has become in

large measure a judicial playbook for evaluating discrimination 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. 

10 LAING v. FEDERAL EXPRESS CORPORATION
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 commentator has gone so far as to observe that comparator evidence 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 Language 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 members 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 statutes aspire to achieve.

Reliance on comparator evidence is also sensible for functional reasons. That is to say, the task of identifying whether

an employer has treated more favorably a person who is situated 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 DisLAING v. FEDERAL EXPRESS CORPORATION 11
crimination by Comparators, 60 Ala. L. Rev. 191, 192 (2009)

(describing comparator evidence as a "simpler, more direct

method of establishing discrimination"). Consider, for example, 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 paramount), a decision should be based on "all the circumstances," 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 "constellation" of contextual considerations that might inform whether

a particular workplace decision was unlawfully motivated,

comparator evidence is more objective in nature. See Goldberg, 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 evidence 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 discrimination 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

12 LAING v. FEDERAL EXPRESS CORPORATION
such evidence has a useful place. In cases where an employer

adduces a nondiscriminatory reason for discharging the plaintiff 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 employer’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 showing 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 protected 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 temporal 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 discharged 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, stopping at a location and entering a code stating that no delivery

LAING v. FEDERAL EXPRESS CORPORATION 13
could be made, only to return soon after and enter a code stating that a delivery was completed. The letter also noted several 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 conduct 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 termination, Laing bears the burden of establishing at step three

of the McDonnell Douglas framework that FedEx’s "proffered 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 investigation 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, Lawton was found to have falsified his delivery records by claiming 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

14 LAING v. FEDERAL EXPRESS CORPORATION
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 suspicious 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 explanation 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 falsification 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 conduct that led to her termination, however, Laing misunderstands the purpose of the pretext inquiry. "[W]hen an

employer gives a legitimate, nondiscriminatory reason for discharging 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." Hawkins v. PepsiCo, Inc., 203 F.3d 274, 279 (4th Cir. 2000) (internal 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

LAING v. FEDERAL EXPRESS CORPORATION 15
her records was "dishonest or not the real reason for her termination," 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 disputes that the suspicious [trace] reports are in fact unacceptable 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 finding 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 ultimate 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

16 LAING v. FEDERAL EXPRESS CORPORATION
is considerable evidence that Laing violated a clearly communicated company policy forbidding delivery records

falsification—a policy upon which FedEx’s commercial viability 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 employees on investigative suspension; gave both employees an

opportunity to write a written statement; and ultimately terminated both employees based on the evidence of document falsification. 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 property.

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 reasonLAING v. FEDERAL EXPRESS CORPORATION 17
ing is inconsistent with the plain text of the statute and the relevant 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 privileges, perquisites and status. It must involve the same or substantially 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 responsibilities and prohibited from entering FedEx property—

encompassed "terms and conditions of employment" equivalent to those which she enjoyed before her leave, much less

"virtually identical . . . privileges [and] perquisites," and "substantially 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 sus18 LAING v. FEDERAL EXPRESS CORPORATION
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 evidence that the investigation uncovered—Laing’s numerous

instances of padding stops and claiming simultaneous deliveries 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 summary judgment to FedEx on Laing’s equivalent position

claim.

V.

For the foregoing reasons, the judgment of the district court

is affirmed.

AFFIRMED

LAING v. FEDERAL EXPRESS CORPORATION 19