Caldwell v. KHOU-TV
| Decision Date | 03 June 2016 |
| Docket Number | CIVIL ACTION NO. H-15-0308 |
| Citation | 190 F.Supp.3d 667,32 A.D. Cases 1551 |
| Parties | Gerald Caldwell, Plaintiff v. KHOU-TV and Gannett Co., Inc., Defendants. |
| Court | U.S. District Court — Southern District of Texas |
Paul Robert Harris, Katherine Louise Butler, Butler Harris, Houston, TX, for Plaintiff.
Linda Cooper Schoonmaker, Seyfarth Shaw LLP, Houston, TX, for Defendants.
Plaintiff, Gerald Caldwell, brings this action against defendants, KHOU-TV ("KHOU") and Gannett Co., Inc. ("Gannett"), for employment discrimination based on disability in violation of Title I of the Americans with Disabilities Act, as amended, 42 U.S.C. § 12111, et seq. ("ADA"), and the Family and Medical Leave Act ("FMLA"), 29 U.S.C. § 2601, et seq. Pending before the court is Defendants' Motion for Summary Judgment (Docket Entry No. 27). For the reasons set forth below, Defendants' Motion for Summary Judgment will be granted, and this action will be dismissed.
Summary judgment is authorized if the movant establishes that there is no genuine dispute about any material fact, and the law entitles it to judgment. Fed. R. Civ. P. 56(c). Disputes about material facts are "genuine" if the evidence is such that a reasonable jury could return a verdict for the nonmoving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). The Supreme Court has interpreted the plain language of Rule 56(c) to mandate the entry of summary judgment "after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 2552, 91 L.Ed.2d 265 (1986). A party moving for summary judgment "must ‘demonstrate the absence of a genuine issue of material fact,’ but need not negate the elements of the nonmovant's case." Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir.1994) (en banc) (quoting Celotex, 106 S.Ct. at 2553–2554 ). "If the moving party fails to meet this initial burden, the motion must be denied, regardless of the nonmovant's response." Id. If, however, the moving party meets this burden, Rule 56 (c) requires the nonmovant to go beyond the pleadings and show by admissible evidence that specific facts exist over which there is a genuine issue for trial. Id. In reviewing the evidence "the court must draw all reasonable inferences in favor of the nonmoving party, and it may not make credibility determinations or weigh the evidence."
Reeves v. Sanderson Plumbing Products, Inc., 530 U.S. 133, 120 S.Ct. 2097, 2110, 147 L.Ed.2d 105 (2000). Factual controversies are to be resolved in favor of the nonmovant, "but only when there is an actual controversy, that is, when both parties have submitted evidence of contradictory facts." Little, 37 F.3d at 1075.
KHOU initially hired plaintiff as a video editor in 1995.1 When KHOU initially hired plaintiff, he already had a visible disability caused by bone cancer
suffered as a child.2 The job of video editor involves two different functions: cutting film and working in electronic digital recording ("EDR").3 When plaintiff was initially hired in 1995, he spent approximately 20 percent of his time in EDR, but today he spends up to 90 percent of his time in EDR and only 10 percent of his time on traditional video editing.4 Plaintiff's performance reviews show that although his supervisors believed that his medical issues limited his ability to perform EDR duties, he could be called upon to complete EDR tasks when needed, he stayed current on changes in the EDR systems, and he adapted well when new EDR systems were introduced at KHOU.5 Nevertheless, in 2008 after his leg was put in a brace, plaintiff's immediate supervisor, Charles Butera, stopped scheduling plaintiff for EDR duties because of fear that plaintiff would be injured in the tight EDR work space.6
In 2012 Butera left KHOU and was replaced by Robert James Kell who maintained Butera's practice of not scheduling plaintiff to work in EDR.7
In December of 2013 KHOU was acquired by Gannett.8
In 2014 plaintiff required surgery related to his disability. In March plaintiff took a few days of personal time for a presurgical procedure.9 Plaintiff had taken medical leave numerous times before and knew he needed to notify his supervisor, Kell, and the HR representative, Shannon Hunter, before doing so.10
In the spring of 2014 Gannett mandated a reduction-in-force ("RIF") at KHOU,11 pursuant to which KHOU was to eliminate two of eight video editor positions.12 The ultimate decision of which positions to eliminate was made by KHOU's News Director, Philip Allan Bruce,13 with input from his subordinates, Arthur Murray and Kell.14 Bruce, Murray, and Kell all agreed that plaintiff's position should be eliminated.15 The other position eliminated belonged to video editor Parrish Murphy.16 KHOU dis-charged plaintiff on April 28, 2014.17 Plaintiff received $17,831 as a severance payment without having to sign a waiver or release.18
On June 4, 2015, KHOU rehired plaintiff at an increased salary when a position opened after an existing video editor transferred to another department.19
Plaintiff alleges that defendants discriminated against him on the basis of disability in violation of the ADA and interfered with his rights to take medical leave in violation of the FMLA by discharging him from his position as video editor in April of 2014. Defendants argue that they are entitled to summary judgment on plaintiff's ADA and FMLA claims because plaintiff is unable to present evidence capable of satisfying the elements of a prima facie case of discrimination under either of those statutes, and because plaintiff is unable to present evidence capable of showing that the legitimate, non-discriminatory reason for which he was discharged, i.e., implementation of a RIF, was a pretext for discrimination or for intent to interfere with rights guaranteed by the FMLA.20
Title I of the ADA prohibits discrimination against qualified individuals on the basis of disability and requires employers to make reasonable accommodations for otherwise qualified disabled employees. 42 U.S.C. § 12112(a) ; § 12112(b)(5)(A). The ADA makes it unlawful for an employer to discriminate against "a qualified individual on the basis of disability ..." 42 U.S.C. § 12112(a). The ADA defines "qualified individual" as "an individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires." 42 U.S.C. § 12111(8). Disability is defined as:
(A) a physical or mental impairment
that substantially limits one or more major life activities of such individual;
(B) a record of such an impairment; or
(C) being regarded as having such an impairment.
42 U.S.C. § 12102(1) (A)–(C). See alsoMilton v. Texas Department of Criminal Justice, 707 F.3d 570, 573 (5th Cir.2013).
Plaintiff may establish an ADA discrimination claim by using direct evidence or by using the indirect method of proof set forth in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973). SeeSeaman v. CSPH, Inc., 179 F.3d 297, 300 (5th Cir.1999). Direct evidence of discrimination "is evidence that, if believed, proves the fact of discriminatory animus without inference or presumption." Rachid v. Jack In The Box, Inc., 376 F.3d 305, 310 n. 6 (5th Cir.2004) (quoting Sandstad v. CB Richard Ellis, Inc., 309 F.3d 893, 897 (5th Cir.2002), cert. denied, 539 U.S. 926, 123 S.Ct. 2572, 156 L.Ed.2d 602 (2003) ). Plaintiff has not cited direct evidence of discrimination and does not argue that this is a direct evidence case.
Plaintiff's initial burden under the McDonnell Douglas framework is to establish a prima facie case of discrimination based upon his disability by showing (1) he is disabled, (2) he was qualified for the job, (3) he was subjected to an adverse employment action because of his disability, and (4) he was replaced by or treated less favorably than non-disabled employees. SeeMilton, 707 F.3d at 573 (citing Daigle v. Liberty Life Insurance Co., 70 F.3d 394, 396 (5th Cir.1995) ). In cases such as this that involve a general reduction in the employer's workforce, the Fifth Circuit uses a modified McDonnell Douglas test. SeeAmburgey v. Corhart Refractories Corp., Inc., 936 F.2d 805, 812 (5th Cir.1991) ; Williams v. General Motors Corp., 656 F.2d 120, 127–28 (5th Cir.1981), cert. denied, 455 U.S. 943, 102 S.Ct. 1439, 71 L.Ed.2d 655 (1982). While the Fifth Circuit does not appear to have addressed the elements of a prima facie ADA case arising from a RIF, other courts that have addressed the issue have applied the standard applicable to RIF cases involving other types of discrimination. See, e.g., Mathis v. BDO USA, LLP, Civil Action No. 4:13–cv–134, 2014 WL 975706, *4 (S.D.Tex.2014). Accordingly, this court will apply the modified McDonnell Douglas test that the Fifth Circuit applies to RIF cases involving other types of discrimination.
In order to establish a prima facie case of discrimination using the modified McDonnell Douglas test, plaintiff must show that: (1) he was a member of a protected class; (2) he was adversely affected by the employer's decision; (3) he was qualified to assume another position; and (4) others who were not members of the protected class remained in similar positions or there is evidence showing that defendant intended to discriminate in reaching the decision at issue. SeePalasota v. Haggar Clothing Co., 342 F.3d 569, 576 (5th Cir.2003) (per curiam), cert. denied, 540 U.S. 1184, 124 S.Ct. 1441, 158 L.Ed.2d 89 (2004) (...
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