One way that an employee can circumstantially prove discrimination is by showing that the employer offered shifting and inconsistent rationales for its adverse action. The Fifth Circuit returns this ADA and FMLA retaliation case back for a jury to decide on just that rationale.
Caldwell v. KHOU-TV, No. 16-20408 (5th Cir. Mar. 6, 2017): plaintiff Caldwell "[i]n March or April 2014 ... told his supervisor and the human resources manager that he would need to take leave for two upcoming surgeries." But between the two surgeries, Caldwell was fired as part of a reduction in force.
"[News Director 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."
Caldwell sued for violations of the ADA and FMLA.
Before and during litigation, the station gave three explanations for the decision to terminate Caldwell: that "Caldwell repeatedly made it very clear to his supervisors and his colleagues that . . . he preferred not to work in EDR [electronic digital recording studio]"; that "[a]fter reviewing all of the video editors, [management] believed that [Caldwell] had not taken the initiative to spend as much time in EDR as other members of the edit staff"; and that the decision had "[a]bsolutely nothing at all" to do with Caldwell's work ethic.
While the district court found this explanation plausible, and granted summary judgment, the Fifth Circuit reverses. It holds that the differing and inconsistent explanations present a genuine dispute about the employer's real reasons, especially when viewed against the backdrop of Caldwell's own testimony:
"[T]he Defendants' explanations for Caldwell's dismissal have evolved from insubordination to a lack of initiative. As to Caldwell's unwillingness to work in EDR, Caldwell testified that he never expressed such a preference. Similarly, Caldwell's supervisors stated that they had no knowledge of Caldwell ever expressing a preference against working in EDR. There is also a question as to whether the Defendants' lack-of-initiative explanation was truthful. Caldwell testified, and his supervisors confirmed, that it was ultimately the employer's decision to limit Caldwell's time working in EDR, not Caldwell's."
And while the explanations originated from different individuals, "this Court has not adhered to a bright-line rule that only the decision-maker's statements can be considered when determining whether a plaintiff has presented sufficient evidence of pretext based on inconsistent explanations for an employment decision."
The inconsistency was underscored by the fact that "unlike other employees, Caldwell was actually prevented from doing EDR work by his employer [because he used crutches], a limitation that was ultimately used as a basis for his termination."
The inference of ADA discrimination was further strengthened by the way the station treated the other, non-disabled editor who was ultimately fired. The station had a counselling policy for deficient performance, yet this policy was not applied to Caldwell
"[N]o one ever informed Caldwell that he should have been doing more work in EDR ... This differs from the Defendants' treatment of the only other editor [Murphy] laid off during the RIF who was not disabled. Unlike Caldwell, the other editor who was not performing adequately was informed of his deficiencies in a one-on-one meeting, providing that employee with notice and an opportunity to improve, both of which were withheld from Caldwell."
Finally, "[b]ecause the pretext arguments Caldwell raised with respect to the ADA apply equally to the FMLA," the court sends both claims back for trial.