What happens when a large employer first learns it is being sued for discrimination? How does that first phone call with counsel go? In most lawsuits, we never know. But, we get some clues in the case of Brian Collister v. KXAN. Mr. Collister, an investigative reporter who has worked in various Texas cities, was fired in early 2018 by the Austin news station, KXAN. Before he was fired, he filed a complaint with the EEOC. After filing with the EEOC, Mr. Collister was called to his supervisor’s office. While waiting outside the office, he heard loud voices, including his manager, talking with attorney Bill Davis in Dallas on speaker phone. The sound, said Mr. Collister, was as loud as a Led Zeppelin concert. He clearly heard Mr. Davis instructing KXAN management how to fire Mr. Collister in a way that would improve their case.
At the point of this conversation, Mr. Collister had already filed a complaint of discrimination with the EEOC. He apparently claimed discrimination based on his disability, ADHD. He had also by the time of this conversation already filed a claim for arbitration with AAA.
Mr. Collister says he heard Mr. Davis clearly say KXAN needs to create a narrative of poor performance:
- “What you’re looking for are performance issues with no connection to ADHD, this is our biggest opportunity.”
- “Yeah he has the right to bring a claim, but we have to build better proof.”
The lawyer’s advice suggests the employer had some interest in creating evidence. Or, something. The testimony also suggests that the employer was starting to scrutinize Mr. Collister’s performance – after h submitted a complaint to the EEOC.
In any event, Mr. Collister lost his claim at arbitration. He then filed suit in U.S. district court representing himself. Mr. Collsiter sought to disqualify Mr. Davis from representing KXAN in that lawsuit. The federal court dismissed his lawsuit, citing a lack of jurisdiction. That makes sense. He had already received a ruling in arbitration. See Cause No. 19-CV-00350. Regarding the motion to disqualify, if Mr. Davis was a witness, he should indeed be disqualified. A lawyer cannot represent a party to a lawsuit if that lawyer is a witness. Management did indeed take some disciplinary action against Mr. Collister after the conversation with Mr. Davis. But, the court did not address Mr. Collister’s motion.
Collister has now re-filed his lawsuit in Travis County district court, where he has again sought to disqualify Mr. Davis. See Collister v. KXAN, Cause No. D-1-GN-19-001138. He claims to have an audio recording of Mr. Davis’ conversation that day outside his manager’s office. And, Mr. Davis continuers to represent KXAN to this day.