Pretext evidence supports revival of ADA, FMLA claims of employee RIF’d between surgeries

Reviving the ADA and FMLA claims of an employee who used crutches as a result of damage to his leg from childhood bone cancer, and who was discharged in between two surgeries, the Fifth Circuit found triable questions on whether the stated reason for his termination—a reduction in force—was pretextual. Reversing summary judgment, the appeals court observed that not only did his employer’s explanations change over time, there was evidence calling into question the veracity of those explanations, as well as evidence that he was not given the same opportunities as other employees because of his disability.

As a video editor for a TV station, the employee edited scripts and worked in electronic digital recording (EDR). As EDR became a bigger part of the job, his supervisors felt it would be difficult for him to move around the EDR room because it was “tight in spots” and they “didn’t want to put him in any health jeopardy because of all that.” The employee, nonetheless, spent time in EDR when other editors went on break and tried to stay up-to-date on changes.

RIF’d between surgeries. In early 2014, he told his supervisor and HR that he would need leave for two upcoming surgeries. Because the date for the second surgery depended on the outcome of the first surgery, he did not yet have a date for that one. Although his supervisor and HR agreed to the arrangement, he was terminated in a RIF before the second surgery could take place. One other editor was also terminated. Before that decision was made, however, that editor was individually informed of his inadequate performance and given an opportunity to improve.

The employee then sued, alleging violations of both the ADA and FMLA and the trial court granted summary judgment to his employer.

Evolving explanations. At issue on the ADA claim was whether the lower court erred by failing to find sufficient evidence of pretext. Finding that the employee raised a fact question regarding pretext, the Fifth Circuit observed that his employer’s reasons for his discharge transformed over time. In a letter to his counsel and in later responses to interrogatories, the employer stated that the decision to fire the employee resulted from his refusal to work in EDR. But in a letter to the EEOC, it stated that he was terminated not because he was a “slacker” but because of his “inability and unwillingness to adapt to technological changes.”

Before the district court, however, the employer argued that the employee was fired because he “had not taken the initiative to spend as much time in EDR as other members of the edit staff” and was thus not as proficient as other employees at performing EDR tasks. Finally, the news editor and ultimate decisionmaker testified that terminating the employee had “[a]bsolutely nothing at all” to do with his work ethic.

Veracity questioned. Further, observed the court, other evidence called into question the veracity of the employer’s explanations. While the explanations for his dismissal evolved from insubordination to a lack of initiative, the employee testified he never expressed an unwillingness to work in EDR and his supervisors stated they had no knowledge of him ever expressing a preference against working in EDR. Moreover, there was evidence that it was the employer’s decision, not the employee’s, to limit his time working in EDR. Further, the news editor testified that the employee’s work ethic was not an issue and the employee testified that he tried to stay up-to-date regarding EDR developments.

Same opportunities. As to the employee’s argument that he was not provided the same opportunities as nondisabled employees, there was evidence that he was not scheduled to work regular shifts in the EDR because of his disability. In addition, while the employer had a practice of consulting with employees who were performing inadequately, no one told the employee he should have been doing more work in EDR. Indeed, said the court, there was evidence he was actually prevented from doing EDR work by his employer, a limitation that was ultimately used as a basis for his termination. Finally, the other editor terminated in the RIF was informed of his deficiencies and provided with an opportunity to improve.

Taken together, this evidence created a fact issue as to whether the employer’s explanations for firing the employee were pretextual and thus the district court erred in granting summary judgment on his ADA claim.

FMLA claim. Because the pretext arguments raised with respect to the employee’s ADA claim applied equally to his FMLA claim, the district court erred in granting summary judgment on the FMLA claim as well.

SOURCE: Caldwell v. KHOU-TV, (CA-5), No. 16-20408, March 6, 2017.

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