Falsified Records Ground UPS Flight Scheduler's FMLA Retaliation Claims


Louisville, KY (WorkersCompensation.com) – Companies can overcome most retaliation claims if they can assert a genuine, lawful reason for terminating an employee and if they have documentation of that reason.

In Devore v. UPS, No. 22-5638 (6th Cir. 02/23/23, unpublished), a long-time UPS flight crew scheduler allegedly had a habit of violating company policy, according to UPS; he would let pilots leave early without adjusting their pay. Company officials said they told him several times not to do that.

In 2018, the scheduler twice took FMLA leave for a foot condition. He made another request for leave, according to the employee. Not long afterward, the company terminated him for falsifying records and for violating the company’s integrity policy.

The scheduler sued UPS for retaliating against him for requesting FMLA leave.

The court explained that to proceed with his case, the employee had to establish that the company’s stated reason for terminating him – falsifying records – was a pretext for retaliation. 

A worker can show pretext by putting forth evidence that "the employer's proffered reasons:

  • Have no basis in fact; 
  • Did not actually motivate the action; or 
  • Were insufficient to warrant the action.

Regarding the first option, it was undisputed that the scheduler failed to apply the required pay-reduction code to reflect the pilot's time off work in May 2018 and that that failure contradicted UPS policy, the court stated.

Turning to the second and third options, the court rejected the scheduler’s claim that the decision to terminate him was motivated by his previous notice of FMLA leave, or that the policy violation was so minor that it was insufficient to warrant termination. 

The court noted that mere temporal proximity between an FMLA request and termination isn’t sufficient to establish pretext. Moreover, it wasn’t certain that the worker’s statement that he “would need to go ‘out on disability’—untethered to any particular timeframe—gave notice of FMLA activity,” the court wrote. Temporal proximity can support a finding of pretext when bundled with other evidence. But the scheduler produced no such evidence, the court concluded.

The employee’s contention that his supervisor was a bully who insulted employees based on their appearances was also unhelpful. 

“[A]though [the supervisor’s] comments to [the scheduler] and other employees were inappropriate—even hurtful—nothing in the record links these insults to [the scheduler’s] request for FMLA leave, particularly where [the supervisor] also lambasted other employees who did not request FMLA leave,” the court wrote.

Finally, evidence that UPS did not usually fire people for the kind of conduct the scheduler engaged was unhelpful, particularly given that supervisors believed the employee had a history of similar errors and had warned him that further disciplinary measures would ensue if he continued the conduct.

Because there was insufficient evidence of pretext, the court affirmed the District Court’s grant of summary judgement to UPS. 

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