Fifth Circuit Victory!

Butler & Harris is proud to announce a recent victory in an appeal to the Fifth Circuit Court of Appeals.

The case is Gerald Caldwell versus KHOU-TV and Gannett Company.

A federal district court in Houston dismissed the case before it could go before a jury, but the Fifth Circuit reversed that ruling and restored the case.

Now KHOU and Gannett must defend themselves in a public trial. Mr. Caldwell is assured the right to have a jury resolve this important dispute.

KHOU employed Mr. Caldwell for nearly twenty-years as a video editor until it fired him in 2014. KHOU was purchased by Gannet shortly before the events of this case.

Why did KHOU fire Mr. Caldwell? He alleges it was due to disability discrimination and to interfere with his upcoming medical leave. Of course, KHOU and Gannett deny any wrongdoing.

Since childhood, Mr. Caldwell has suffered from a rare form of bone cancer. Over time, that cancer left his leg very deteriorated and in need of major surgery to avoid amputation. For years prior to the firing, Mr. Caldwell used crutches to get around.

Finally, in 2014, Mr. Caldwell had a chance to get his leg fixed. He told KHOU he would need two surgeries. While he told KHOU the date for the first surgery, he wouldn’t know the date of the second surgery until his doctors saw how his leg was responding to the first surgery. He promised to tell KHOU the date of the next surgery as soon as possible.

Mr. Caldwell had the first surgery. Then KHOU fired him before he could get the second one.

KHOU left Mr. Caldwell without insurance which almost kept his critical leg surgery from happening. Thankfully, a generous doctor agreed to do the surgery for almost no compensation. The operation was successful.

Fifth Circuit Court of Appeals, By Bobak Ha’Eri (Own work) [CC BY 3.0 (], via Wikimedia Commons

False and Changing Explanations: KHOU’s explanation for the firing has changed over the time. This is what caught the eye of the Fifth Circuit in Mr. Caldwell’s appeal. The decision notes that, “[i]nconsistent or false explanations for an employment decision ‘cast doubt'” on whether any of KHOU’s explanations are true.

The Fifth Circuit’s ruling is a recognition that Mr. Caldwell has enough evidence of discrimination that a jury could find in his favor if given the chance. After hearing about how KHOU’s story has changed over time, a jury could decide that the real reason KHOU fired Mr. Caldwell was because of his disability.

Reason No. 1: In a letter written before the lawsuit, KHOU claimed it picked Mr. Caldwell for the layoff because he was refusing to perform his job duties, namely tasks related to electronic digital recording (EDR).

It turns out that KHOU has no evidence that Caldwell ever refused EDR work. That allegation is false.

The truth is that KHOU stopped scheduling him to the EDR because his supervisors felt it would be difficult for him to maneuver around that room with his crutches. Mr. Caldwell continued to do EDR work when no one else was around and he took it upon himself to stay up-to-date on EDR technology.

Reason No. 2: Then, in a letter to a federal agency, KHOU claimed that Mr. Caldwell was terminated, not because he was a “slacker,” but rather because of his “inability and unwillingness to adapt to technological changes.”

This explanation does not ring true either. Remember, it was KHOU that stopped scheduling Mr. Caldwell for EDR time, not the other way around.

Reason No. 3: Finally, later on in litigation, KHOU abandoned the prior explanations and instead argued that Mr. Caldwell “had not taken the initiative to spend as much time in EDR as other members of the edit staff.”

This explanation is no better than the others. The person who made the decision to fire Mr. Caldwell testified that the decision had “[a]bsolutely nothing at all” to do with Mr. Caldwell’s work ethic.

Other Evidence of Discrimination: The Fifth Circuit recognized that other evidence made the firing suspicious as well.

The most basic definition of discrimination is treating a person with a disability differently from a person without a disability. Mr. Caldwell has evidence that KHOU did just that.

The other video editor was laid-off because he was sleeping on the job, even though he had been warned about that. He got a one-on-on meeting about his deficiencies and a chance to correct them.

But KHOU never told Mr.  Caldwell there was any problem with his performance. No one ever told Mr. Caldwell he should be doing more EDR work. Instead, KHOU actively prevented him from doing EDR work, then blamed him for not doing enough EDR work

KHOU has a practice of informing its employees about performance problems and giving the employee a chance to improve. But it chose not to follow that practice for the employee with a disability. A jury can decide whether that is evidence of discrimination.


This lawsuit is far from over. But this decision from the Fifth Circuit lets our client continue to pursue his rights and work towards holding KHOU and Gannett responsible for taking away his livelihood and nearly his leg.