                 United States Court of Appeals
                            For the Eighth Circuit
                        ___________________________

                                No. 13-1764
                        ___________________________

                                   Melissa Malloy,

                       lllllllllllllllllllll Plaintiff - Appellant,

                                           v.

                           United States Postal Service,

                      lllllllllllllllllllll Defendant - Appellee.
                                      ____________

                     Appeal from United States District Court
                  for the Southern District of Iowa - Des Moines
                                  ____________

                          Submitted: November 20, 2013
                              Filed: June 30, 2014
                                 ____________

Before WOLLMAN, COLLOTON, and GRUENDER, Circuit Judges.
                       ____________

COLLOTON, Circuit Judge.

       Melissa Malloy sued her employer, the United States Postal Service, alleging
that the Postal Service violated her rights under the Family and Medical Leave Act,
29 U.S.C. § 2601 et seq. The district court1 granted summary judgment in favor of
the Postal Service, and we affirm.

                                          I.

        Because we are reviewing a grant of summary judgment, we describe the facts
in the light most favorable to Malloy. Malloy worked for the Postal Service from late
November 2005 through December 29, 2010, under a series of appointments in a
status known as a “casual” employee. The Postal Service hires casual employees to
supplement its traditional workforce. Casual employees receive no benefits beyond
their hourly wages and have neither collective bargaining nor grievance rights. Postal
Service policy provides that casual employees can be terminated for
absenteeism—including a single unexcused absence—without prior notice. The
agency had no other policies concerning a casual employee’s attendance.

       Malloy had chronic attendance problems throughout her tenure at the Postal
Service. Robert Burke, the Postal Service’s manager of distribution operations in the
area and Malloy’s supervisor at the time, discussed Malloy’s poor attendance with her
in April, July, and September 2008, and in February and April 2009. In August 2009,
Jeffrey McConkey, then the supervisor of distribution operations and Malloy’s
supervisor, informed Malloy that if her attendance did not improve, she could be
terminated immediately. He explained that the Postal Service did not have a
progressive discipline policy for casual employees.

      During 2010, Kenny Ramus and James Harpold were Malloy’s immediate
supervisors. Both Ramus and Harpold reported to Burke. Although Ramus was



      1
      The Honorable Ronald E. Longstaff, United States District Judge for the
Southern District of Iowa.

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authorized to direct and to schedule hours for casual employees, he was not
responsible for disciplining or terminating them.

       On April 27, 2010, Malloy submitted a written request for leave under the
FMLA based on a medical condition that involved lower-back pain. The Postal
Service approved Malloy’s request (effective April 21), authorized her to take leave
for one day per one incident each month, and even allowed her to take an extra day
of FMLA leave on four occasions during 2010. Malloy requested and took FMLA
leave on April 22, May 6 and 10, June 10 and 11, August 15 and 16, November 4, and
December 17 and 18, 2010.

       In addition to her FMLA leave, however, Malloy was absent without excuse
on February 1 and 22, and December 12 and 27, 2010. After Malloy’s unexcused
absence on December 27, Harpold and Burke decided to terminate her employment.
Harpold notified Malloy of the decision on December 29, telling her that she was
discharged as a result of four unexcused absences within an eleven-month period, two
of which occurred in a fifteen-day span. Harpold testified that in evaluating
attendance-related discipline, he considers the employee’s job performance, whether
the employee communicated with him regarding the absences, and the timing of the
absences. Absences around the holidays—including the month of December—are
more problematic, because that is the Postal Service’s busiest time of year.
According to Harpold, he does not consider FMLA-related absences in making
disciplinary decisions. Harpold did not discuss Malloy’s termination with supervisor
Ramus prior to terminating her, but he did meet with Ramus shortly thereafter to
ensure that he had not made a mistake in terminating Malloy.

      There was some dispute among Malloy’s supervisors regarding her job
performance. None of the termination-related documents mentions any concern with
Malloy’s job performance. Ramus testified that Malloy was a good worker and that
he had no concerns about her job performance. Distribution manager Burke, on the

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other hand, testified that he did not compare Malloy’s attendance record to the
attendance records of other casual employees, because Malloy’s supervisors “had
constant complaints about her work performance,” and those complaints “definitely
played a part” in the decision to terminate her.

       In early 2011, Malloy brought a discrimination claim under the FMLA against
the Postal Service, claiming that the agency fired her because she invoked her rights
under the statute. On the employer’s motion for summary judgment, the district court
analyzed Malloy’s claim under the burden-shifting framework of McDonnell Douglas
Corp. v. Green, 411 U.S. 792 (1973). See Wierman v. Casey’s Gen. Stores, 638 F.3d
984, 999 (8th Cir. 2011). Relying on the temporal proximity between Malloy’s
exercise of her FMLA rights (December 17 and 18) and her termination (December
29), the court ruled that Malloy established a prima facie case of discrimination. The
Postal Service proffered a legitimate, nondiscriminatory reason for Malloy’s
termination: her four unexcused absences in an eleven-month period, two of which
occurred within fifteen days of each other during a holiday period. The district court
granted summary judgment for the Postal Service, reasoning that Malloy failed to
demonstrate that similarly situated employees were treated differently, and that
Malloy’s other arguments were unpersuasive.

      Malloy appeals. We review the district court’s grant of summary judgment de
novo, viewing the evidence and drawing all reasonable inferences in the light most
favorable to Malloy. Hervey v. Cnty. of Koochiching, 527 F.3d 711, 719 (8th Cir.
2008).

                                         II.

      The FMLA prohibits an employer from taking adverse action against an
employee because that employee exercises the rights to which she is entitled under
the FMLA. See Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d 996, 1005–06

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(8th Cir. 2012). Taking FMLA leave, however, does not give an employee any
greater protection against termination for reasons unrelated to the FMLA than was
available before. Estrada v. Cypress Semiconductor (Minn.) Inc., 616 F.3d 866, 871
(8th Cir. 2010). To avoid summary judgment, Malloy must present sufficient
evidence for a jury to find that the Postal Service’s decision to terminate her was
motivated by her exercise of rights under the FMLA. See Pulczinski, 691 F.3d at
1007.

       Malloy argues that she demonstrated a submissible case with evidence of (1)
the temporal proximity of the exercise of her FMLA rights to her termination, (2) the
Postal Service’s more lenient treatment of other casual employees who did not
exercise their FMLA rights, and (3) the Postal Service’s mendacity about the reasons
for her termination. Because the record has been fully developed in conjunction with
the motion for summary judgment, we turn directly to the ultimate question whether
there is a submissible case of discrimination vel non. Johnson v. Ready Mixed
Concrete Co., 424 F.3d 806, 810 (8th Cir. 2005); see U.S. Postal Serv. Bd. of
Governors v. Aikens, 460 U.S. 711, 714–15 (1983).

       Generally, more than a temporal proximity between protected activity and
termination is required to present a genuine issue of fact for trial. Sisk v. Picture
People, Inc., 669 F.3d 896, 900 (8th Cir. 2012). Malloy relies on the eleven-day
period between her use of FMLA leave and her termination, but this evidence of
timing cannot be viewed in isolation. The Postal Service repeatedly warned Malloy
about her attendance problems before she requested FMLA leave. “[E]vidence that
the employer had been concerned about a problem before the employee engaged in
the protected activity undercuts the significance of the temporal proximity.”
Wierman, 638 F.3d at 1001. Otherwise, a problem employee on thin ice with the
employer could effectively insulate herself from discipline by engaging in protected
activity. Malloy also used FMLA leave on several other occasions between April and
November without repercussions, suggesting that the employer was not hostile to the

                                         -5-
protected activity. See Chappell v. Bilco Co., 675 F.3d 1110, 1118 (8th Cir. 2012).
Malloy’s termination followed immediately on the heels of a second unexcused
absence. Any inference of discrimination arising from temporal proximity to the
December 17 and 18 FMLA leave is undermined by the inference of
nondiscrimination arising from temporal proximity to the December 27 unexcused
absence.

       Malloy sought to enhance her claim with evidence that casual employees who
were absent without excuse, but who did not exercise FMLA rights, were treated
more leniently by the employer. She failed to show, however, that her suggested
comparators reported to the same supervisors or were absent without excuse during
the busy holiday season. See Cherry v. Ritenour Sch. Dist., 361 F.3d 474, 479 (8th
Cir. 2004). The putative comparators were thus not similar to Malloy “in all relevant
respects,” Smith v. Allen Health Sys., Inc., 302 F.3d 827, 835 (8th Cir. 2002), and the
evidence adds no heft to her case.

       Malloy complains that the district court unfairly discounted her evidence
because the Postal Service never cited in argument the fact that the comparators
reported to different supervisors. She cites Federal Rule of Civil Procedure 56(f)(2),
which provides that a district court may grant summary judgment on grounds not
raised by a party, but only after giving notice and a reasonable time to respond. Rule
56(f) did not preclude the district court’s analysis here, because Malloy has the
burden to prove that her comparators are similarly situated to her, Smith, 302 F.3d at
835, and the district court was duty-bound to examine whether that burden was
satisfied. See Liberty Mut. Ins. Co. v. Pella Corp., 650 F.3d 1161, 1178 (8th Cir.
2011). Although the Postal Service emphasized other reasons why the comparators
were dissimilar, the issue of similarity was fairly presented, and the district court
properly applied the relevant law to the undisputed facts.




                                         -6-
        Malloy also contends that evidence of the Postal Service’s mendacity regarding
its reason for her termination supports an inference of discriminatory motive. Malloy
asserts that Harpold’s testimony was internally inconsistent, because he stated both
that a good worker deserves leniency, and that he did not discuss Malloy’s job
performance with supervisor Ramus before her discharged Malloy. Harpold also
testified, however, that he was familiar with Malloy’s performance from the period
when he was her supervisor, and that he checked with Ramus shortly after the
termination—when there was still time to reverse it—to ensure that he had not made
a mistake. There is no inconsistency that supports an inference of discriminatory
motive.

      Malloy also suggests that the Postal Service gave shifting explanations for the
termination, and that the agency “suddenly” enforced its workplace policies on
attendance for the first time after she exercised rights under the FMLA. Neither
contention carries much weight.

       When Malloy was terminated, Harpold cited the fact that she had been absent
four times in the last eleven months and twice in the previous fifteen days. Later,
Burke added that Malloy’s supervisors complained about her work performance.
Burke’s addendum is not the sort of shifting explanation that supports an inference
of discrimination. The agency maintained all along that Malloy was terminated for
poor attendance. That Burke supplemented the consistent explanation with comments
about her performance—perhaps to explain why leniency was unwarranted in this
instance—does not undermine the employer’s legitimate reason for the action. See
Phillips v. Mathews, 547 F.3d 905, 913 n.5 (8th Cir. 2008). Similarly, the employer’s
reliance on Malloy missing work during the Postal Service’s busiest season was an
amplification of the core justification of poor attendance. There has been no
substantial change in the employer’s stated reason.




                                         -7-
       Malloy’s claim that the Postal Service suddenly enforced its workplace policies
after she used FMLA leave is unsupported by the record. Malloy used FMLA leave
frequently during 2010 with no negative consequences. That Malloy’s attendance
problems finally triggered action by the employer does not mean the Postal Service
deviated from ordinary practice. The December 2010 absences were not similar in
kind to the previous absences. They occurred in close succession during the holiday
season. And the later absences came after Malloy already had compiled a record of
poor attendance and received warnings that she could be discharged for additional
infractions.

      In the end, Malloy’s case consists of an unpersuasive argument of temporal
proximity combined with a collection of challenges to agency practice and
explanations that do not support an inference of impermissible motive. There is not
a submissible case of discrimination.

                                  *       *       *

      The judgment of the district court is affirmed.
                     ______________________________




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