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A Case of Pregnancy and Pretext

How do courts handle cases of alleged pretextual behavior designed to cover up discriminatory actions? A recent Tenth Circuit decision sheds a little light on this issue. Fassbender v. Correct Care Solutions, LLC, No. 17-3054 (10th Cir. May 15, 2018).

Alena Fassbender worked for Correct Care Solutions (CCS) as a medication aide at a Kansas detention center.  Fassbender was pushing her medication cart down one of the center’s cell blocks on April 30, 2015, when an inmate slipped a note onto her cart. Instead of reading the note immediately, Fassbender took it home and read it there. The note both contained personal information that Fassbender had not shared with the inmate and suggested that the inmate wanted to begin a sexual relationship with her.

Fassbender returned the next day and told the detention center officials about the note. They told her that she did the right thing by reporting the note to them. Yet, in spite of this, one detention center official contacted Carrie Thompson, CCS’s heath-services supervisor, to complain about Fassbender’s behavior.

On May 2, Thompson confronted Fassbender about the incident and explained that Fassbender should have immediately given the note to a guard and then reported the incident to her. Thompson then gave Fassbender a written warning for her failure to follow policy and failure to report a serious issue.

The day after that, a second inmate left a note on Fassbender’s cart. This time, she followed CCS’s policy by giving the note to a guard and then calling Thompson, who asked Fassbender to write up an incident report, which she did.

Nevertheless, Fassbender – who was pregnant at the time – was terminated three days later. She claims that she was the victim of sex discrimination by being fired because of her pregnancy. In response to her claims, CCS argues that she was terminated for violating company protocol regarding contact with inmates.

A Valid Reason or Just Pretext for Discrimination?

At the heart of this case are two competing narratives, one of which involves unlawful discrimination against the employee while the other involves legitimate reasons.

To solve dilemmas like this one, courts will typically look at whether there was any direct evidence of discrimination. However, there was no such evidence in this case, so the court analyzed the circumstantial evidence of discrimination. It did so by using the Supreme Court’s McDonnell Douglas three-step framework.

This legal framework requires first that the plaintiff demonstrate a prima facie case of discrimination. One way to do this would be to show that the defendant was (1) a member of a protected class (2) who was terminated (3) despite her qualifications for the job and (4) that the job itself wasn’t eliminated. The court found that Fassbender met all of these requirements.

At the second step, the burden of production shifts to the defendant, who must show a legitimate, non-discriminatory reason for the termination. CCS did this by citing its policy for interacting with inmates, though it changed its specific reason for the termination throughout this case.

Finally, we arrive at the third step of the framework, which states that summary judgment is not warranted if the plaintiff can show that “there is a genuine issue of material fact as to whether the [defendant’s] proffered reasons are pretextual.”

A Collection of Suspicious Circumstances

The court held that the circumstances in this case were “sufficiently suspicious,” to the point that a jury might find CCS’s reasons to be merely pretexts for an employer’s unlawful discrimination.

To begin with, there was evidence that Thompson made comments suggesting a bias against pregnant workers. Approximately four or five weeks before Fassbender’s termination, Thompson overheard Fassbender discussing her pregnancy, after which Thompson remarked, “What, you’re pregnant, too?” A few days later, Fassbender heard Thompson say in response to the news of another employee’s pregnancy, “Are you kidding me? Who is it? I don’t know how I’m going to be able to handle all of these people being pregnant at once.”

At some point around this time, a different CCS medication aide overheard Thompson telling an assistant, “I have too many pregnant workers. I don’t know what I’m going to do with all of them.” According to the aide, Thompson sounded “very angry and frustrated” when she made this remark.

Another key piece of evidence in this case was CCS’s lack of details and shifting explanations for terminating Fassbender. Initially, Thompson told Fassbender she was being fired due to the “severity” of the inmate note incident, without offering more details about what made this so severe in the first place. Complicating matters further for CCS, Thompson failed to attach her own narrative to the termination-request form, instead attaching Fassbender’s report about the note incident.

Then, after Fassbender sought more answers, other CCS HR employees told her that the reason for her termination was the length of time that she held onto the note. That same day, one of the HR employees sent a report to her supervisor saying that the reason for termination was both the length of time it took Fassbender to report the note to CCS and because she took the note home.

Later, in response to the EEOC charge that Fassbender filed, CCS did not even mention the fact that Fassbender took the note home. Instead, CCS explained that the reasons for termination were (1) Fassbender’s failure to report the note directly to Thompson, (2) the length of time she took to report it, and (3) the familiarity with Fassbender that the inmate expressed in the note.

In litigation, however, CCS abandoned all of its prior explanations. In their place, CCS gave a single reason for terminating Fassbender: the fact that she took home correspondence from an inmate.

The court viewed CCS’s shifting explanations – coupled with Thompson’s comments regarding pregnant employees, Thompson’s failure to provide a written narrative explaining the termination request, and Fassbender’s proper handling of the second note from an inmate – as sufficient reasons for a jury to conclude that CCS’s alleged reasons for terminating Fassbender were “too weak, implausible, inconsistent, or contradictory” to believe. It noted that a jury could go the other way as well, but because there were both plausible lawful and unlawful explanations for the termination, it was the jury’s job to choose between them. The court, therefore, denied CCS’s request for summary judgment.

Lessons to Live By

This case offers a few lessons. First, when terminating an employee, be clear and consistent from the beginning about your reasons for the termination. If Thompson had simply filed a suitable narrative along with her termination request, she would have likely saved her company a lot of problems.

The case also demonstrates the importance of the sum total of the facts, rather than one single piece of evidence. After all, the court notes here that it was the totality of the circumstances that allowed for a reasonable inference of pretext in this case.

The main takeaway: getting your facts straight and using all of them in concert can make or break a case. That’s a good lesson to live by.

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