Labor & Employment Law Daily Wrap Up, EMPLOYE LEAVE—E.D. Ky.: Employee cannot overcome evidence he was terminated for legitimate reasons, (Aug 11, 2025)

By Robert Margolis, J.D.

He argued the reasons given for termination were not factually correct, but his evidence did not show the reasons to be “false” or that the employer did not honestly believe them.

Citing an investigation that led Pace Air Freight, Inc., to conclude a former employee was insubordinate in refusing to allow supervisors access to security cameras and also that he falsified travel expense records, a federal district court in Kentucky has granted Pace summary judgment on his claims for interference and retaliation under the FMLA. The court credited Pace’s evidence that it terminated the employee for the legitimate nondiscriminatory and nonretaliatory reasons of insubordination and falsification of expense records, and rejected as insufficient his evidence that those reasons were not factually correct and therefore pretextual (Thistlethwaite v. Pace Air Freight, Inc., No. 2:22-cv-00081-KKCD-CJS (E.D. Ky. Aug. 7, 2025)).

Trucking company. The employer is a trucking company that primarily transports medical products, a highly-regulated industry that requires “time sensitivity” and honesty among its managers. The employee was hired as a truck driver in 1999. By the time of the events at issue in the case, he had been promoted to an administrative position, director of operations at either two or four airline terminals into which the medical products are transferred for further distribution, including Louisville and Cincinnati.

Medical leave. The employee had taken medical leave on three occasions between 2018 and 2021, but the lawsuit is not related to those instances. In February 2021, the employee presented the employer with a signed note from his doctor asking that he be excused from his work due to an unidentified condition. In a subsequent form the doctor identified the condition as “chronic systolic heart failure,” though at their depositions the doctor and employee both described the condition as “anxiety.” In March 2021, the doctor sent a follow-up letter saying the employee would be able to return to work on April 5, 2021.

Discharge and lawsuit. However, by letter dated March 31, 2021, the employer terminated the employee, citing in its termination letter his failure to provide supervisors access to security cameras at the terminals, and also falsifying travel expense records.

The employee sued under the FMLA, claiming the employer interfered with his leave and retaliated against him for taking the leave. The employer moved for summary judgment.

No pretext shown. The court assumed that the employee had met his prima facie case under the McDonnell Douglas burden shifting framework. The reasons that the employer gave for the termination—insubordination and falsification—were legitimate nondiscriminatory reasons, supported by affidavit testimony as well as the termination letter. The employer’s Comptroller and Chief Financial Officer gave affidavit testimony that she led an investigation of the employee which showed (1) he twice refused to allow access to security camera videos of the terminals in which he worked when asked by his superiors (including the employer’s owner); and (2) on more than 12 occasions he falsified travel expense reports to claim mileage for travel to terminals where he apparently was not present. She concluded from her investigation that the two were related, since the employee likely knew the security videos would show he was not present at the terminals to which he claimed to have traveled. Either defalcation alone would be grounds for termination, she testified. Therefore, the burden shifted back to the employee to establish that those reasons were pretext. This he failed to do, the court held.

The employee argued the reasons given had no basis in fact, which required him to point to evidence that it was factually false that he failed to give company superiors access to security camera videos and that he submitted false mileage claims. His evidence was insufficient. His testimony about the security videos veered from allegations that the security videos did not exist, that they existed but did not work, and that he lacked access to related passwords. But in no instance did he dispute the fact that when asked for access to the security videos, he did not provide it.

His evidence for disputing the assertion that he submitted false travel expense reports also failed to rebut the employer’s evidence that he was not present at terminals in the cities he claimed mileage for traveling to. The employer’s evidence included interviews with other employees who claimed they did not see him at the terminals on relevant dates. His evidence—out-of-context phrases in the investigation notes, and statements that he did not always enter the terminals on days he traveled to the cities in question—did not convince the court.

Honest belief. Even if the employee’s evidence were enough to call into question the underlying accuracy of the investigation’s conclusions, he provided no evidence to rebut the employer’s argument that it “made a reasonably informed and considered decision” based on an honest belief in the facts and conclusions of the investigation.

No comparator. Finally, the employee argued that falsification of expense reports was pretextual because it was not sufficient to motivate his termination. He cited deposition testimony from his son, a former employee, that another employee was accused of theft but was not terminated. This was not sufficiently similar conduct to insubordination and record falsification to serve as comparator evidence, the court held.

The case is No. 2:22-cv-00081-KKC-CJS.

Judge: Caldwell, K.

Attorneys: Robert L. Thompson (Law Offices of Robert L. Thompson) for Richard Thistlethwaite. Edward Scott Treadway (EST Law) and Scott Lee Tyler (Waters, Tyler, Hofmann & Scott) for Pace Air Freight Inc.

Companies: Pace Air Freight Inc.

Cases: EmployeeLeave Retaliation Discharge KentuckyNews