Laid-Off TV Video Editor Can Air Disability Claims for Jury

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By Patrick Dorrian

A laid-off video editor at a Houston TV station who had bone cancer as a child can pursue claims that he was let go because of his disability and request for medical leave ( Caldwell v. KHOU-TV , 2017 BL 69131, 5th Cir., No. 16-20408, 3/6/17 ).

A jury could agree with Gerald Caldwell that the reasons offered by management at KHOU-TV for including Caldwell in a 2014 reduction in force shifted over time and may have been false, the U.S. Court of Appeals for the Fifth Circuit found.

The station at first said Caldwell refused to do electronic digital recording (EDR) work and later changed its explanation to his lack of initiative to take on such work. But Caldwell’s direct supervisors testified that the station intentionally scheduled him for less EDR work because he used crutches to get around and the EDR room is “tight in spots,” the court said March 6.

That testimony also could convince a jury that, because of his disability, Caldwell wasn’t given the same opportunities to learn new skills as his co-workers who were assigned more EDR work, the court said. For the same reasons, KHOU-TV’s explanation for laying off Caldwell also might be seen as a pretext for firing him because he requested medical leave for surgery, the court said.

This “sounds like a classic case, at least initially,” of where supervisors may have set themselves up “to be the victims of their own good intentions,” John K. Linker of Alaniz Schraeder Linker Farris Mayes LLP in Houston said. Linker, a management-side lawyer who didn’t participate in this case, was referring to Caldwell’s immediate supervisors apparently excusing him from full EDR duties because they thought he might have difficulty performing those tasks in the tight work space.

It also sounds like the employer never really got its story straight as to why Caldwell was included in the RIF, Linker added. That’s a very important issue for employers in these situations, because courts are really examining a company’s alleged shifting reasons at the summary judgment stage, he told Bloomberg BNA March 7. It’s hard for an employer to win summary dismissal of an employment discrimination claim when it hasn’t been consistent in its explanation for an adverse employment action, he said.

A Less Employer-Friendly Fifth Circuit?

The decision also seems to continue a trend in the Fifth Circuit of reversing summary judgment, Mark J. Oberti of Oberti Sullivan LLP told Bloomberg BNA March 7. The circuit has long had a reputation for being employer-friendly, but it now seems to be moving away from that, he said. Oberti, who also represents management and is based in Houston, likewise didn’t participate in the case.

The decision overall is a terrific opinion for plaintiffs, Andrew S. Golub of Dow Golub Remels & Gilbreath PLLC in Houston, told Bloomberg BNA March 7. First, it’s a published opinion, so it has precedential value. Second, it takes a “broadly pro-employee view of the evidence.”

The news director’s testimony contradicting the prior explanations offered by the employer is “enormously striking evidence,” Golub said. Because the news director made the ultimate decision, he was in a position to know why Caldwell was included in the layoff. Golub did not participate in the case.

Let Go Between Surgeries

Caldwell joined KHOU-TV, which is now owned by Gannett Co. spinoff Tegna Inc., in 1995. As a result of damage to his leg caused by his childhood cancer, he moves around with the aid of crutches.

His direct supervisors in 2012 decided to not require Caldwell to perform as much EDR work as his co-workers, saying that they didn’t want to put his health in jeopardy due to the tight confines of the EDR room.

Caldwell still performed some EDR work, and he testified that he was always willing to perform more of it. Moreover, he said he took it upon himself to stay current with the changes taking place in EDR, the court said.

KHOU-TV’s 2014 RIF fell between two surgeries that Caldwell had informed the station about and for which he had arranged to take medical leave. He and one other editor were cut in the RIF, but unlike the other worker, Caldwell didn’t have a record of performance issues with EDR, the court said. The other worker also, unlike Caldwell, had been caught sleeping at work.

In defending against Caldwell’s Americans with Disabilities Act and Family and Medical Leave Act claims, the station at first said that Caldwell had expressed a preference not to do EDR, which was an increasing share of video editors’ work, the court said. But the company later said he was included in the layoff because he actively avoided EDR and was unwilling to adapt to technological changes, before switching again and saying he lacked the initiative and dedication of his co-workers with regard to EDR work. Later still, the news director, who made the ultimate decision, testified that Caldwell’s inclusion in the RIF had nothing to do with his work ethic.

Shifting Explanation Analysis Rejected

A jury could find from those shifting stories that the station’s RIF explanation for Caldwell’s discharge was a pretext for bias under the ADA and the FMLA, the Fifth Circuit ruled, reversing a lower court.

In reaching that decision, the appeals court rejected the district court’s conclusion that the station’s various accounts for why Caldwell was RIFed couldn’t show pretext because the statements were made by different managers and supervisors. It isn’t just a decision maker whose statements are considered in assessing a company’s explanation for a challenged employment decision, the appeals court said.

The Fifth Circuit says statements by non-decision-making employees also may be considered in determining whether an employer has offered shifting explanations, Oberti said.

That “sort of broadens” the circuit’s standard with regard to the “shifting explanation” analysis, which is a common argument in cases that come down to a question of pretext, he said.

‘Bit of a Trap’ for Employers

In holding that Caldwell may also be able to establish pretext by showing that he wasn’t given the same opportunities to learn new skills as his co-workers who were assigned more EDR work, the court highlights a “bit of a trap” for employers, Oberti said. By excusing Caldwell from a video editor’s regular share of EDR duties, his supervisors may have compromised the station’s ability to rely on EDR work as a criterion when it came to including him in the RIF, Oberti said.

Golub sees it differently. The court focused on the fact that the reason Caldwell didn’t have more experience in EDR work was because of the instructions of his managers. That sounds like they may have been setting him up to fail, Golub said. Sort of a “heads I win, tails you lose situation.”

But Linker agreed with Oberti. What Caldwell’s supervisors apparently did is similar to what is sometimes seen in pregnancy discrimination cases, where an employer presumes that a worker who becomes pregnant can no longer safely perform certain tasks, he said.

An employer shouldn’t take that step absent medical confirmation that a worker’s condition actually prevents him from doing the task or tasks in question, Linker said. Without medical proof that an accommodation is needed, the employer is better off allowing the employee to continue working as usual and documenting any performance deficiencies, in case future discipline becomes necessary, he said. Such situations “must be handled with great sensitivity,” he added.

To avoid being found to have offered shifting excuses for an employment action, employers need to be consistent and clear in their reasoning from at least the point where a charge of discrimination is filed with the Equal Employment Opportunity Commission, Linker said. And then the reason or reasons must remain consistent throughout the remainder of the case, he said.

The parties didn’t respond March 7 to Bloomberg BNA’s request for comment.

Judge Edward C. Prado wrote the opinion, which was joined by Judges Stephen A. Higginson and Gregg Jeffrey Costa.

Katherine L. Butler and Paul R. Harris of Butler & Harris in Houston represented Caldwell. Linda C. Schoonmaker and Brian A. Wadsworth of Seyfarth Shaw LLP in Houston represented the station and its parent corporation.

To contact the reporter on this story: Patrick Dorrian in Washington at pdorrian@bna.com

To contact the editors responsible for this story: Peggy Aulino at maulino@bna.com; Terence Hyland at thyland@bna.com; Christopher Opfer at copfer@bna.com

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