As a child, you probably played a game in which one child whispers a “secret” into the ear of another child. The second child then whispers the secret into the ear of a third child and on and on until the last child in the circle whispers the secret into the ear of the first child. Guess what? At the end, the secret is 100% unrecognizable. Think about that game as a metaphor as you read about how an employer struggled to get its story straight in defending itself in a recent lawsuit.
‘No—Wait, Wait—I Know the Answer!’
“Marvin” worked as a video editor for KHOU-TV in Houston. Because he had cancer as a child, he walks with crutches. A lot of his work involved electronic digital recording (EDR). His supervisors were concerned about his mobility in the cramped EDR room, and they decided not to put his health in jeopardy because of the issue. In fact, the supervisors acknowledged that it was their decision, not his, to limit his time in the EDR room.
Marvin was terminated in a reduction in force (RIF), and he sued for violations of the Americans with Disabilities Act (ADA). In responding to his lawyer’s claims and the lawsuit, the TV station gave conflicting reasons for his termination:
- In a letter to his lawyer, the TV station stated Marvin refused to do the EDR work he was assigned.
- In a letter to the Equal Employment Opportunity Commission (EEOC), the TV station declared he was not terminated for being a “slacker” but because of his “inability and unwillingness to adapt to technological changes.”
- Later, in testimony presented to the trial court, the TV station abandoned those arguments. The employer said Marvin was fired because he “had not taken the initiative to spend as much time in EDR as other members of the edit staff” and thus was not as proficient in performing EDR tasks as other employees.
- Finally, the manager responsible for terminating Marvin testified that the decision had “absolutely nothing” to do with his work ethic.
The appeals court said the conflicting explanations could be taken by a jury to mean that Marvin’s disability was the real reason for his termination. So the trial court’s judgment in favor of the employer was, so to speak, canceled for low ratings. Marvin will get his day in court.
One More Key Issue
It may be that Marvin’s supervisors were truly concerned about his disability in limiting his time in the EDR room. But that is the very essence of discrimination. To support its conclusion, the appeals court talked about a case decided back in 1990.
In that case, a black employee was performing poorly. Her supervisors decided not to counsel her because they were afraid she would sue the company for race discrimination. In fact, she got a pay raise she did not deserve. When it came time for a RIF, the employee was picked because of her poor job performance. In memorable language, the appeals court in Marvin’s case remarked:
<blockquote>Although [the employee’s] race may not have directly motivated the . . . decision to fire her, her race did play a part because [she] would have been notified that her performance was deficient if she had been white and [she] would at least [have had] an option to improve, thereby reducing or removing the risk of being fired. </blockquote>
Bottom line: According to the court, Marvin faced the same issue. Caldwell v. KHOU-TV (5th Cir., March 6, 2017).
Roll Tape
I do not want to be critical of the TV station. It is often difficult to determine the exact thinking and rationale behind a termination decision. That’s all the more reason to measure twice and cut once. So be sure that any letter that goes to opposing counsel or the EEOC is read by the decision makers. Be sure to provide an atmosphere of understanding and candor in developing the facts.
Look, an employee who is interviewed in a lawsuit may be afraid. He may think, “Wow, there is a lawyer here! What’s going on? Am I going to lose my job for helping to get another employee fired?” My suggestion: Before developing the facts, ask your key witnesses, “How do you feel about this lawsuit? What do you believe is your role in defending against the lawsuit? Tell me what’s going on in your thought process.” Then, and only then, will a witness be able to give you the stuff you need to know.
Michael P. Maslanka is an editor of Texas Employment Law Letter and can be reached at Michael.Maslanka@FisherBroyles.com.