Caldwell v. Khou-TV

• Decision Date: 06 March 2017
• Docket Number: No. 16-20408,16-20408
• Citation: 850 F.3d 237
• Parties: Gerald CALDWELL, Plaintiff–Appellant, v. KHOU–TV; Gannett Company, Incorporated, Defendants–Appellees.
• Court: U.S. Court of Appeals — Fifth Circuit

850 F.3d 237

Gerald CALDWELL, Plaintiff–Appellant,

v.KHOU–TV; Gannett Company, Incorporated, Defendants–Appellees.

No. 16-20408

United States Court of Appeals, Fifth Circuit.

FILED March 6, 2017

Katherine L. Butler, Esq., Paul R. Harris, Butler & Harris, Houston, TX, for Plaintiff–Appellant.

Linda C. Schoonmaker, Brian Ashley Wadsworth, Seyfarth Shaw, L.L.P., Houston, TX, for Defendants–Appellees.

Before PRADO, HIGGINSON, and COSTA, Circuit Judges.

EDWARD C. PRADO, Circuit Judge:

After being fired, Gerald Caldwell sued his employers, KHOU–TV and Gannett Company, Inc. (collectively, "the Defendants"), for violations of the Americans with Disabilities Act ("ADA") and the Family Medical Leave Act ("FMLA"). The district court granted summary judgment in favor of the Defendants and Caldwell appealed. Because we find that Caldwell raised a genuine issue of fact over whether the Defendants' reasons for firing him were pretextual, we REVERSE and REMAND.

I. FACTUAL BACKGROUND

Gerald Caldwell originally began working as a video editor at KHOU–TV ("KHOU") in 1995. Caldwell was disabled at the time he was hired by KHOU because he had suffered childhood bone cancer

. Because of damage to his leg as a result of the cancer

, Caldwell moved around with the assistance of crutches.

At KHOU a video editor's work is split between two primary tasks: (1) editing scripts and (2) working in electronic digital recording ("EDR"). By late 2012, video editors began spending a much larger portion of their work time in EDR. Even though most editors were scheduled to work in EDR between two and three times a week, Caldwell was not. As Charlie Butera and Robert Kell, Caldwell's direct supervisors, testified, 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."¹ In spite of this limitation, Caldwell would spend time in EDR when other editors went on break and testified that he took it upon himself to stay up-to-date on changes taking place in EDR.

In March or April 2014, Caldwell told his supervisor and the human resources manager that he would need to take leave for two upcoming surgeries. Caldwell initially did not have a date for his second surgery because it depended on the outcome of the first, but promised to provide a date as soon as he had one. At the time, both Caldwell's supervisor and the human resources manager agreed to this arrangement. Caldwell was ultimately fired before this second surgery could take place.

Also in 2014, Gannett Company, Inc. ("Gannett"), KHOU's parent company, mandated a reduction-in-force ("RIF") and required KHOU to eliminate two editor positions.² Philip Bruce, the news director, was charged with deciding who would be fired but was assisted by Kell, Caldwell's supervisor at the time, and Art Murray. Bruce testified that Kell and Murray provided him with specific information about "day-to-day operation[s]" and asked for their suggestions about who to fire given how the video editing positions were "going to continue to evolve over the coming months and ... years." Based on input from Kell and Murray, Bruce made the decision to fire Caldwell and another editor, Parrish Murphy. Before the decision was made, Murphy had been individually informed of his inadequate performance per KHOU policy and had been given the opportunity to improve; Caldwell was not given equivalent forewarning or opportunity to improve his performance.

In explaining the decision to terminate Caldwell, the Defendants initially stated that "Caldwell repeatedly made it very clear to his supervisors and his colleagues that ... he preferred not to work in EDR." Later, Bruce likewise intimated that Caldwell was fired because he actively avoided taking on EDR work. In the Defendants' motion for summary judgment, however, the Defendants stated that "[a]fter reviewing all of the video editors, Bruce, Kell, and Murray believed that [Caldwell] had not taken the initiative to spend as much time in EDR as other members of the edit staff." And in spite of all this, Bruce also maintained that the decision to fire Caldwell had "[a]bsolutely nothing at all" to do with Caldwell's work ethic. Murphy, on the other hand, was fired because he not only had problems in EDR but also had been caught sleeping at work.

Caldwell filed suit against the Defendants on February 3, 2015, alleging violations of both the ADA and FMLA.³ The Defendants then filed a motion for summary judgment, which was granted by the district court on June 3, 2016. Caldwell timely appealed.

II. DISCUSSION

This Court "reviews a district court's grant of summary judgment de novo, applying the same standards as the district court." Griffin v. United Parcel Serv., Inc. , 661 F.3d 216, 221 (5th Cir. 2011). Summary judgment is proper where "the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a). In reviewing a motion for summary judgment, factual inferences are viewed in the light most favorable to the nonmoving party. Smith v. Reg'l Transit Auth. , 827 F.3d 412, 417 (5th Cir. 2016). "[T]he salutary function of summary judgment in the employment discrimination arena [is that] summary judgment allows patently meritless cases to be nipped in the bud." Amburgey v. Corhart Refractories Corp. , 936 F.2d 805, 814 (5th Cir. 1991) (quoting Thornbrough v. Columbus & Greenville R.R. Co. , 760 F.2d 633, 645 n.19 (5th Cir. 1985), abrogated on other grounds by St. Mary's Honor Ctr. v. Hicks , 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993) ).

A. The ADA Claim

Caldwell first argues that the district court erred in granting summary judgment on his ADA claim. 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). To establish an ADA discrimination claim, a plaintiff may present "direct evidence that [he] was discriminated against because of [his] disability or alternatively proceed under the burden-shifting analysis first articulated in McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973)." Rodriguez v. Eli Lilly & Co ., 820 F.3d 759, 764 (5th Cir. 2016). Caldwell does not present any direct evidence of discrimination and must therefore proceed under the McDonnell Douglas burden-shifting framework.

Caldwell bears the initial burden under McDonnell Douglas to establish his prima facie case of discrimination. Id. at 765. To carry this burden, Caldwell must establish: (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.⁴ Id. "If he makes that showing, a presumption of discrimination arises, and the employer must ‘articulate a legitimate non-discriminatory reason for the adverse employment action.’ " Cannon v. Jacobs Field Servs. N. Am., Inc. , 813 F.3d 586, 590 (5th Cir. 2016) (quoting EEOC v. Chevron Phillips Chem. Co. , 570 F.3d 606, 615 (5th Cir. 2009) ). The burden then shifts back to the plaintiff "to produce evidence from which a jury could conclude that the employer's articulated reason is pretextual." Id. "A plaintiff may show pretext either through evidence of disparate treatment or by showing that the employer's proffered explanation is false or unworthy of credence." Jackson v. Cal–W. Packaging Corp. , 602 F.3d 374, 378–79 (5th Cir. 2010) (internal quotation marks omitted). "An explanation is false or unworthy of credence if it is not the real reason for the adverse employment action." Laxton v. Gap Inc. , 333 F.3d 572, 578 (5th Cir. 2003).

The parties neither contest the district court's determination that Caldwell established a prima facie case of discrimination, nor do they dispute the district court's conclusion that the Defendants raised a legitimate nondiscriminatory reason for firing Caldwell—namely, an RIF. Instead, Caldwell argues that the district court erred by failing to find that Caldwell presented sufficient evidence of pretext. Caldwell argues that summary judgment should have been denied because there was evidence that the Defendants: (1) gave false explanations for firing Caldwell; (2) changed their explanations for firing him; (3) limited and segregated Caldwell in a way that adversely impacted his performance; and (4) did not give Caldwell the same opportunities as other employees. "In the context of a summary judgment proceeding, the question is not whether the plaintiff proves pretext, but rather whether the plaintiff raises a genuine issue of fact regarding pretext." Thornbrough , 760 F.2d at 646. We hold that Caldwell has met this burden.

First, Caldwell argues that the Defendants' explanations for firing him are unworthy of credence because they were inconsistent over time and erroneous. An employer's inconsistent explanations for an employment decision "cast doubt" on the truthfulness of those explanations. Gee v. Principi , 289 F.3d 342, 347–48 (5th Cir. 2002) ; see also Burrell v. Dr. Pepper/Seven Up Bottling Grp., Inc. , 482 F.3d 408, 412 n.11 (5th Cir. 2007) ("[A]n employer's inconsistent explanations for its employment decisions at different times permit[ ] a jury to infer that the employer's proffered reasons are pretextual."). For example, in Burrell , an employer at different times offered different explanations for its decision to promote an employee over the plaintiff. 482 F.3d at 413. Before the EEOC, the employer stated that the plaintiff lacked "purchasing experience." Id. But before the district court, the employer stated that the plaintiff lacked "bottling experience." Id. And before this Court, the employer stated that that the plaintiff lacked "purchasing experience in the bottling industry." Id. Considering this inconsistency in combination with evidence suggesting the plaintiff was better qualified than the...