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Fassbender v. Correct Care Solutions, No. 17-3054 (10th Cir. May 15, 2018)

An employee fired during her pregnancy should get a Title VII trial, holds the Tenth Circuit, where one of the putative decision-makers reportedly told the plaintiff "[w]hat, you're pregnant too?," and said "I don't know how I'm going to be able to handle all of these people being pregnant at once" and "I have too many pregnant workers, I don't know what I am going to do with all of them."

Fassbender v. Correct Care Solutions, No. 17-3054 (10th Cir. May 15, 2018): Fassbender was a certified medication aide at the Wyandotte County Detention Center. The basic circumstances were summarized by the court:

"At all relevant times, Fassbender and two other CCS employees at the Detention Center were pregnant. At some point in late March or early April 2015, Carrie Thompson-CCS' health-services administrator at the Detention Center-overheard Fassbender discussing her pregnancy and remarked, 'What, you're pregnant too?' Id. at 219. A few days later, Thompson learned that yet another member of her staff was pregnant. Fassbender testified that she heard Thompson respond to this news, '[A]re 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.' Id. at 369. At some other point around this time, Lori Lentz-Theis-another certified medication aid-overheard Thompson telling an administrative assistant, 'I have too many pregnant workers[.] I don't know what I am going to do with all of them.' Id. at 490. Lentz-Theis said that Thomspson sounded 'very angry and frustrated compared to how she usually sounds' when she said this. Id."

Weeks after these alleged statements, Fassbender came under investigation for violating an anti-fraternization rule. One of the inmates handed her a note that read like a sexual proposition. Fassbender took the note home, then reported it the very next day to jail officials. While the officials initially thanked Fassbender for reporting the note, an HR manager consulted by the jail recommended that Fassbender be suspended for not following procedures for such inmate contacts. Thompson later reprimanded Fassbender (for not immediately turning the note over to a guard, and reporting the incident directly to Thompson), putting her on "final warning" but not suspending her.

A day after her reprimand, "by apparent coincidence, it happened again": another inmate put a note on her cart. This time, Fassbinder followed procedure. Nevertheless, Thompson recommended terminating Fassbender "the severity of the breach in the policy[,] . . . the security of the facility[,] and the concerns of the client." The other managers concurred. Thompson then suspended Fassbender and soon thereafter informed Fassbender of her termination.

Fassbender tried to learn the details of why she was fired, but was stymied.

"Fassbender sent an email on Thursday, May 7, to CCS' HR director, Stephanie Popp. In the email, Fassbender explained that Thompson didn't give her a specific reason for her termination. She also reported the comments Thompson made about Fassbender and her other pregnant employees and theorized that Thompson might have terminated her because of her pregnancy."

Thompson herself was later counselled "to be careful when commenting on employees' pregnancies in the future, and according to testimony by one participant in that conversation, "Thompson acknowledged during this conversation that she had made these comments."

Fassbender filed suit, alleging both pregnancy discrimination (and retaliation for reporting sexual harassment) under Title VII. The district court granted summary judgment, holding that Fassbender failed to create a genuine dispute of material fact that the reason given-that she took "correspondence from an inmate home in violation of" the fraternization policy-was a pretext for discrimination.

The Tenth Circuit reverses in part. The panel breaks the case analysis into two parts. In part 1, it holds that Thompson's alleged biased remarks alone do not constitute "direct evidence" sufficient to establish liability. (Query whether such a "direct evidence" analysis is even valid after Desert Palace, Inc. v. Costa, 539 U.S. 90 (2003).) While Thompson was a decision-maker, her biased remarks did not concern or were not in close proximity to the termination decision. "Thompson made the comments at issue about a month before terminating Fassbender. And although Thompson arguably expressed a desire to have fewer pregnant subordinates, she didn't suggest that Fassbender's pregnancy somehow made her unqualified for her position."

In part 2, though, the panel finds that the plaintiff presented enough circumstantial evidence to warrant a trial. Thompson's alleged remarks were a part of that, of course. The employer argued that the remarks, if they were made, merely expressed Thompson's frustration at having three people out at once. Yet a jury could conclude that it was "exactly because Fassbender's pregnancy-and looming maternity leave-posed an inconvenience to Thompson that a jury could conclude that Thompson terminated Fassbender to ease that burden .... Whether the comments reflect some disdain towards pregnant women as a class doesn't enter into the equation." The jury could also infer "hostility and frustration" from the tenor of Thompson's remarks. And even if other people (untainted by the remarks) were a part of the decision, a jury could conclude that Thompson was the decision-maker. Finally, the record established that Thompson both admitted making the biased remarks (to her colleagues) but later denied them, implying a "consciousness of guilt."

Along with the remarks, there was also evidence that the reason given for the termination was pretextual. There were the employer's shifting explanations, i.e., "its failure to consistently identify exactly why it terminated her."

"Initially, Thompson vaguely told Fassbender that she was being terminated because of the 'severity' of her offense, without elaborating on which of Fassbender's specific acts led to this conclusion. Fassbender testified that she didn't know why she was fired. Then, when Fassbender spoke with [managers] on May 8-after Fassbender first alleged discrimination-to shed some light on the topic, they told her that the main issue was the length of time she held onto the note. That same day, [HR produced] a report explaining that they terminated Fassbender because of the length of time it took her to report the note and because she took the note home."

The record also showed that Fassbender followed the jail's written procedures, even if she did not do so instantly, and during her initial meeting with the jail no one challenged Fassbender's compliance. Also, "a jury could conclude that Fassbender alleviated Thompson's legitimate concerns that she would reoffend when she properly reported the second inmate note," and that Thompson took short-cuts in personnel procedures to expedite the firing.

Regarding the retaliation claim, the panel affirms summary judgment, holding that there was no harassment as a matter of law, and thus no protected activity by Fassbender.

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