A recent decision out of the Fifth Circuit Court of Appeals, Caldwell v. KHOU-TV, No. 16-20408 (5th Cir. March 6, 2017), offers an obvious, but important, reminder for employers — provide consistent reasons for why you make employment decisions. Be honest. Be consistent. Don’t make stuff up. Otherwise, plaintiff-employees may be able to assail your explanation when and if litigation ensues. In Caldwell, the plaintiff claimed that he was fired because of his disability and request for FMLA leave. The appellate court found that the plaintiff’s claims could survive summary judgment because the employer’s explanation changed over time.
Caldwell started working for KHOU-TV in 1995. He used crutches as a result of a disability. A video editor, Caldwell’s duties included editing scripts and working in electronic digital recording (“EDR”). By late 2012, the video editors spent more time on the EDR as opposed to editing. Most editors worked in EDR two to three times per week, however, Caldwell worked far less in EDR. Caldwell’s supervisors testified that Caldwell was not scheduled for EDR as much as other editors because “they felt it would be difficult for Caldwell to move around the EDR room because it is ‘tight in spots’ and they ‘didn’t want to put him in any health jeopardy because of all that.’” Nonetheless, Caldwell worked in EDR when his colleagues were on break and stayed current on EDR changes.
In spring 2014, Caldwell informed KHOU that he needed leave for two surgeries (one scheduled, the other to be scheduled). KHOU agreed to Caldwell’s suggestion that he inform them of his second surgery date in the future, when he knew the date. That same year, KHOU’s parent, Gannett Company, Inc., required KHOU to eliminate two editor positions as part of a reduction in force. KHOU’s news director decided to fire Caldwell and another editor after receiving input from Caldwell’s supervisor and another employee. The other employee had documented inadequate performance. Caldwell, however, was not given any warning of performance deficiencies.
Defendants first explained Caldwell’s termination as based on his clear desire to not work in EDR. Caldwell had not communicated such a desire, however. Further, in litigation Defendants stated that Caldwell was discharged because he “had not taken the initiative to spend as much time in EDR as other members of the edit staff.” Further, KHOU maintained that Caldwell’s discharge was entirely unrelated to Caldwell’s work ethic.
Caldwell sued KHOU and Gannett claiming violations of the Americans with Disabilities Act (ADA) and the Family and Medical Leave Act (FMLA). On appeal, the Fifth Circuit concluded that there was a genuine issue of fact over whether the purported reason for Caldwell’s termination was pretextual.
Regarding the ADA claim, the court reiterated that Caldwell was required to show that: (1) he has a disability, or was regarded as disabled; (2) he was qualified for the job; and (3) he was subject to an adverse employment decision on account of his disability. Caldwell met this burden and the defendants then presented a legitimate, non-discriminatory reason for the decision (the RIF). The court found that Caldwell sufficiently established that the RIF explanation was pretext because Defendants gave inconsistent explanations for the decision. As summarized by the court: “Defendants’ explanations for Caldwell’s dismissal have evolved from insubordination to a lack of initiative.”