Melissa Malloy v. United States Postal Service, 756 F.3d 1088

Malloy was a casual employee of the Postal Service from late 2005 to December 29, 2010, with no benefits or grievance rights and possible termination for absenteeism without notice.
Malloy had chronic attendance problems; supervisors warned her in 2008 and 2009, and in August 2009 she was told termination was possible if attendance did not improve, with no progressive discipline policy for casuals.
In 2010 Malloy requested FMLA leave for lower-back pain; the Postal Service approved leave with a limited monthly cap and allowed additional FMLA days on four occasions.
Malloy took multiple FMLA leaves in 2010 (April–November) but also had several unexcused absences (February 1 and 22, December 12 and 27, 2010).
After the December 27 unexcused absence, supervisors Harpold and Burke terminated Malloy on December 29, 2010, citing four unexcused absences in eleven months, including two within fifteen days during the holiday period.
The district court granted summary judgment for the Postal Service, relying on a nondiscriminatory reason (poor attendance) and finding no evidence of similarly situated comparators or discriminatory motive.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Malloy proved a submissible FMLA discrimination case.	Malloy relies on temporal proximity and comparator evidence.	Proffered legitimate reason (poor attendance) defeats discrimination claim; comparators not similarly situated.	No submissible case; district court affirmed.
Does timing between FMLA leave and termination support an inference of discrimination?	Timing (December 17–18 leave, December 29 termination) shows hostility to FMLA rights.	Pre-existing attendance warnings and later unexcused absence negate inference.	Timing does not establish discrimination given prior warnings and later unexcused absence.
Are putative comparators sufficiently similar to Malloy to prove dissimilar treatment?	Other casuals absent without excuse were treated more leniently.	Comparators were not shown to report to same supervisors or be absent during peak season.	Not similarly situated; evidence insufficient.
Is there evidence of mendacity or shifting explanations for termination?	Harpold’s statements inconsistent; timing suggests motive.	No real inconsistency; explanations consistent with attendance-based rationale.	No inference of discriminatory motive.
Did the Postal Service’s conduct post-FMLA leave deviate from its usual practice?	Enforcement started only after FMLA exercise.	Record shows consistent rationale—attendance and holiday-season impact.	No substantial deviation; not discriminatory.

Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996 (8th Cir. 2012) (requires evidence of causal link to defeat summary judgment)
Estrada v. Cypress Semiconductor (Minn.) Inc., 616 F.3d 866 (8th Cir. 2010) (FMLA protections do not extend beyond preexisting grounds for termination)
Wierman v. Casey’s Gen. Stores, 638 F.3d 984 (8th Cir. 2011) (temporal proximity alone is insufficient; preexisting concerns matter)
Cherry v. Ritenour Sch. Dist., 361 F.3d 474 (8th Cir. 2004) (similarly situated comparators required for proof of discrimination)
Smith v. Allen Health Sys., Inc., 302 F.3d 827 (8th Cir. 2002) (similarity of employment situations controls comparator analysis)
Johnson v. Ready Mixed Concrete Co., 424 F.3d 806 (8th Cir. 2005) (burden-shifting framework guidance for discrimination cases)
U.S. Postal Serv. Bd. of Governors v. Aikens, 460 U.S. 711 (1983) (establishes framework for evaluating protected activity retaliation)
Sisk v. Picture People, Inc., 669 F.3d 896 (8th Cir. 2012) (temporal proximity and other factors considered together)
Chappell v. Bilco Co., 675 F.3d 1110 (8th Cir. 2012) (evidence of protected activity and timing scrutinized)
Phillips v. Mathews, 547 F.3d 905 (8th Cir. 2008) (context for evaluating shifting explanations)