For good reasons, employers often hesitate to take disciplinary action against or fire employees on or about to go on Family and Medical leave. The timing of such decisions can create a prima facie case of retaliation under the FMLA, requiring the employer to demonstrate legitimate business reasons for the decision. Earlier this month, the Fourth Circuit Court of Appeals, which includes North Carolina and South Carolina, confirmed that timing alone is usually not enough for a plaintiff to prove FMLA retaliation.

Laing v. Federal Express Corp. involved a FedEx driver who injured her knee and informed her supervisor of her need for upcoming surgery. Shortly thereafter, FedEx began an investigation of the plaintiff's timekeeping procedures, and terminated her for falsification of time records a few weeks before her scheduled surgery. She sued, claiming that the investigation was a pretext for terminating her due to her planned medical absence from work. As evidence of this intent, the plaintiff claimed that her supervisor had commented that FedEx intended to eliminate her route while she was away from work.

The Fourth Circuit affirmed summary judgment for the defendant. While the plaintiff was able to establish a prima facie case of retaliation, she was not able to demonstrate that the timekeeping investigation and conclusions of that investigation were pretext. The court refused to review the fairness of the investigation or its conclusions absent any evidence of motivation for the investigation beyond the timekeeping policy. The Fourth Circuit noted that the alleged comment about route elimination was attempted humor and not evidence of a retaliatory motive.

The court noted that the plaintiff's failure to demonstrate comparative workers who violated the timekeeping policy but did not take FMLA leave, and were treated differently by FedEx harmed her claim. Poor timing and documentation of termination decisions can lead to expensive and disruptive litigation. In the end, however, most plaintiffs must demonstrate more than timing in order to ultimately prevail on their claims of retaliation.