French v. Gray Television Group, Inc. d/b/a KBTX News 3
Filing
55
OPINION on Judgment. (Signed by Judge Lynn N Hughes) Parties notified. (ghassan, 4)
UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF TEXAS
United States District Court
Southern District of Texas
ENTERED
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Robert French,
Plaintiff,
'Versus
Gray Television Group, Inc.,
Defendant.
September 22, 2016
David J. Bradley, Clerk
Opinion on Judgment
I.
Introduction.
A television station fired its meteorologist. He says the station breached
their agreement, retaliated for his having taken medical leave, and discriminated
against him for his disability. The station prevails.
2.
Background.
Gray Television Group hired Robert French as its chief meteorologist and
on-air reporter in 1990. In 20 I 3, Gray fired him half-way through the three-year
term of his employment agreement with cause specified in the text.
From
1990
to
2012,
Gray had occasionally disciplined and counseled
French to control his anger, treat colleagues respectfully, work all scheduled
hours, tell his supervisors in advance of his vacations, and ensure the presence
of qualified staff during severe weather.
On August 9,2012, French took an unauthorized two-hour break during
an alert for severe weather, abandoning the work to a lower-level meteorologist.
OnJanuary 8,
2013,
French lost his temper and cursed at a colleague about
another worker's schedule. Three days later, French's supervisor, Mike Wright,
sent French an email detailing problems about French's requests for vacation,
treatment of colleagues, and staff scheduling. Wright also asked to meet on
Page -I-
January
14;
he says that he was going to give French a plan for improvement.
French responded by saying he did not see a problem with his scheduling
decisions and that he would not be coming in that day. This response was
apparently illustrative of his attitude at work.
On January
15, 2.013,
French's wife called to say that he was in the
hospital. She also sent a note from French's doctor saying that he needed to take
medical leave for an illness that began onJanuary 10. French told Gray that he
would take the leave, agreeing that it began on January 10. French was on leave
from January 10 to April
16.
When he returned to work, management agreed
that he could have fewer responsibilities until he was fully able to resume the
duties of chief meteorologist. Although some of his duties were assigned to
another worker who was called the interim-chief meteorologist, Gray treated
French as having resumed his position as chief meteorologist, paying him as it
had before his leave.
On April 2.4 - one week after his return - Wright told French about the
plan for improving his functioning. French's work remained substandard with
these new infractions:
•
In May, French left the station - from
11:00
p.m. to
12.:30
a.m.
- despite a severe-weather alert.
•
In lateJune or earlyJuly, a meteorologist complained that French
had a "meltdown" in front of other workers with him yelling and
cursmg.
•
InJuly, French did not post information about weather changes
on the station's social-media sites.
On July 5, Gray fired French, citing his low productivity, disruptive
behavior, erratic attendance, and failure to improve.
3.
Cause.
Their agreement permits Gray to fire French if: (a) he wilfully neglected
his duties, (b) he refused to comply with instructions without excuse, or (c)
Gray notified him in writing and paid him two-months salary from the date of
firing.
Page -2-
Gray had cause to fire French. Gray shows that from
1990-2012
it
warned French repeatedly. The problems in the plan were endemic.
The plan that Wright gave French on April
24, 2013,
specified that he
was to:
•
Control his anger and behave professionally;
•
Request vacation in advance by talking to a supervisor;
•
Be present at work for his scheduled time;
•
Use the weather department's tools;
•
Train less-experienced employees; and
•
Schedule personnel appropriately.
These instructions were reasonable, but French did not change. He
continued his pattern of wilfully doing what he chose. French says that the
reasons given were a pretext to fire him (a) in retaliation for taking protected
medical leave and (b) as discrimination for having a disability.
A.
Absence.
He says the complaint about his absence during sever weather is pretext
because weather reports show that there was no severe weather in the area on
that date. He misstates reality. The reports show thunderstorms with gusts of
wind up to twenty-eight miles per hour. French may not consider that severe.
Even ifhe does not, the record of the forecasts predicted severe weather - not that
it actually happened. French left the station without knowing what was going to
happen.
French does not deny that he continued to arrived late.
B.
Lost Temper.
French says that the complaint that he yelled and cursed is pretext
because cursing was common. This is the "But Bobby did it too" defense. French
overlooks that he was disciplined for his behavior. Misbehavior of others is no
defense. Also, his cursing is one of many misdeeds, compounding the severity of
each. One of the workers whom Gray says witnessed the episode does not
remember it and was not offended. One co-worker may not have been offended,
but other staff may have been. Regardless of the sensitivities of the staff, the
Page -3-
station sets the standards for workplace civility, and it was offended.
The worker who did complain testified that she remembers French
yelling and cursing at her.
C.
Social Media.
Finally, French says that the improvement plan did not require him to
post about severe weather on social media. Gray was not required to specify each
part of French's job. After all, he had been there for a doz;en years and was a
leader. The plan had emphasiz;ed that he was to use the weather department's
tools. Social media pages are a major component of news outlets.
French does not deny that posting was one of his duties nor that he did
not make the expected posts on time. He says another worker also did not make
a post. Yes, and she did not hold a position parallel to his; she is not comparable.
She was reprimanded but was not fired because she also did not have French's
history of poor performance.
D.
Severance.
Gray offered to pay French for two months after the date he was fired.
Even if it did not tender the severance fee, it had cause. Whether they are applied
to his contractual or statutory claims, his arguments are disingenuous quibbles.
No fully informed, disinterested person could reasonably conclude that French's
behavior was not clearly actionable by the company.
4.
Retaliation.
French says that Gray retaliated against him for taking leave protected by
the Family and Medical Leave Act. French says that he was disciplined,
discriminated against, and fired for taking leave. Gray did not discriminate
against him or fire him because he took protected leave. As the section about the
contract reveals, the station had long experience with French's persistent
multifaceted substandard execution of his duties. His tacking a different legal
label on the single consequence of his history at Gray does not alter a single
underlying fact or event.
Gray allowed French to take protected leave fromJanuary
April
I6, 20I3.
IO, 20I3,
to
When he returned, he resumed his title and pay. He was also
Page '4'
allowed a grace period before he resumed his full responsibilities.
A week after he returned, Wright gave French a plan for improving his
performance. The plan was neither discrimination nor termination. French calls
the plan "discipline," but it does nothing other than remind him of some of his
duties and inform him that his past performance has been unsatisfactory. It
neither demoted him nor decreased his pay.
French also says that he had to work on Memorial Day, while another
worker took a vacation. The other worker was a meteorologist, not the chief
meteorologist; she is not an appropriate comparator. Further, French was already
scheduled to work Memorial Day, as were other employees. The denial of a
request to change the schedule, five days beforehand, does not evince
discrimination.
Gray's decision to fire French was not causally connected to his taking
protected leave. French was entitled to twelve . weeks of protected leave; Gray gave
him more time, telling him to come back when he was well. When he came
back, Gray told him he had performed poorly before taking leave and gave him
precise steps for improvement. Almost three months after his return, he was
fired for not improving.
French protests many times that the improvement plan refers to his
misbehavior while he was on protected leave. Other than his initial absence itself,
the faults in performance were while he was at the station. The company was
told that he had gone to a hospital onJanuary 14; French asked to backdate the
leave to January 10, and Gray agreed. He had been told about a plan to be
explained onJanuary 14. The next day he went to the hospital. In hard fact, his
absence started on January I4. The plan said the complained of behavior
happened between January 8, 2.013, and January 14, 2.013.
Gray says that before his leave started onJanuary 10,2.013, he yelled and
cursed during stressful times, came to work late, left at inappropriate times,
inadequately managed the schedule, and belatedly told his supervisors about his
planned vacations. The plan probably says 'January 8-14, 2.013," because the
most recent of those behaviors - yelling and cursing at a colleague - was on
January 8, 2.013. The plan was written January 14, 2.013.
French also says that an electronic message from the interim-Chief
Meteorologist evinces Gray's discriminatory intent. The message shows that one
Page -5-
worker thought French should not take vacation so soon after having missed
three months of work. That person was not involved in the decision to fire
French. The workers who had been covering for French for months did
legitimately not want to cover for him after he had been back for awhile. What
one or ten workers think is not discrimination. French would have it that talk
about current schedules is banned because it would reflect on his absence.
Gray gives nondiscriminatory genuine reasons for firing French. Not a
pretext in the bunch.
5.
Disabiliry.
French says that Gray fired him because he was disabled. French never
asked for an accommodation at Gray nor has he asked for one at his new
employer, another station.
French is not disabled. He says that he has general anxiety disorder and
major depressive disorder, causing a "breakdown" that started onJanuary ro,
20r 3. By April r6, his doctor released him to return to work. BetweenJanuary
and April, he was not disabled; he was sick. Upon returning to work, French did
not seek an accommodation. His doctor reported him fit for duty medically.
Being sick does not justify a worker attacking his coworkers, refusing to meet
managers, skipping responsibilities; it does justify seeking medical attention and,
when supported by medical analysis, leave.
Gray fired French in July, three months after his recovery; he no longer
had an argument for being disabled. While a temporary impairment may qualify
as a disability, the disability does not endure once the impairment abates. French
says that Gray developed a plan for his improvement while he was disabled; it
had ample reasons for proposing that he needed to change well before he fell ill.
Being sick or disabled does not absolve the worker for full responsibility for his
behavior before the leave. An improvement plan is not an adverse employment
action.
Even if French was disabled, he was not fired because of his disability. At
his deposition, his criticism of his bosses was that they did not "understand" his
medical problem. He will take nothing on his claim for disability discrimination.
Page ,6,
6.
Conclusion.
French was ill in the first quarter of 2.01 3. The law protects workers who
are ill with required unpaid leave. If workers can meet their job's responsibilities
with a reasonable adjustment in their working conditions that they formally
request, they are protected from adverse actions because of their disabling
condition. Neither law immunizes workers from the consequences of their
behavior at work. With an accommodation, they must do the job right. Gray
Television Group fired Robert French because he failed to do his job and
disrupted his colleagues. He will take nothing.
Signed on September
2.2., 2.016,
at Houston, Texas.
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