United States: Fassbender v. Correct Care Sols., LLC, No. 17-3054, 2018 U.S. App. LEXIS 12556 (10th Cir. 2018)

The Tenth Circuit reminded employers last week that termination reasons should be legitimate, nondiscriminatory, easily explainable, and unchanging. In Fassbender v. Correct Care Sols., LLC, No. 17-3054, 2018 U.S. App. LEXIS 12556 (10th Cir. 2018), the United States Court of Appeals for the Tenth Circuit remanded Fassbender's case back for a jury trial because the employer's reasons for termination kept changing.

Plaintiff, Alena Fassbender, was a certified medication aide and worked at the Wyandotte County Detention Center in Kansas City, Kansas with Correct Care Solutions, LLC, a nationwide health-care services company that provides care for inmates across the county. Fassbender and two other employees of CSS were pregnant. After learning that Fassbender was pregnant, the CSS supervisor reportedly made statements such as "are you kidding me? . . . I don't know how I'm going to be able to handle all of these people being pregnant at once. I have too many pregnant workers. I don't know what I am going to do with them all."

In April 2015, an inmate slipped Fassbender a note by placing it on Fassbender's medication cart without her knowledge. The note alarmed Fassbender because it suggested that the inmate knew personal information about her and implied that the inmate wished to form a sexual relationship with her. Fassbender reported the note to the Detention Center Officials who told Fassbender she did the right thing by reporting the incident and assured her that the inmate would be disciplined. However, one of the officials complained that Fassbender mishandled the situation by taking the note home and waiting over 24 hours to report the incident. CSS told Fassbender she should have given the note to a guard when the cell block was cleared of inmates, and immediately reported the incident. The next day, a different inmate left a note on Fassbender's cart while she was distributing medication. Fassbender immediately gave the note to a guard and called her supervisor to report the incident. The Detention Center Officials suspended Fassbender the same day.

The next day, CSS terminated Fassbender's employment for violating the "fraternization" policy. CSS first told Fassbender she was terminated because of the "severity" of the offense. Unaware of the underlying violation, Fassbender asked CSS's human resources department for an explanation. Human resources told her it was because she did not report the note sooner. CSS then prepared an internal memorandum identifying the termination reasons as both (1) failing to timely report the note and (2) taking the note home. Fassbender then filed an EEOC Charge. In response to the EEOC Charge, CSS said Fassbender was terminated because (1) she failed to report the inmate's note to her supervisor, (2) she did not report the incident the same day, and (3) she discussed personal matters either with the inmate or within earshot of the inmate. CCS did not indicate in its EEOC Response it terminated Fassbender for taking the note home; it did not mention in its description of the events that Fassbender took the note home. After Fassbender sued, CSS alleged in its summary judgment motion that Fassbender was terminated solely because she took "correspondence from an inmate home in violation of" the fraternization policy.

The Tenth Circuit analyzed Fassbender's claim using the McDonnell Douglas burden-shifting framework to determine whether the circumstantial evidence supported Fassbender's pregnancy discrimination claim. The Tenth Circuit focused its analysis on whether CSS' reasons for terminating Fassbender was pretext for discrimination. One of the easiest ways for a plaintiff to show pretext is to show that the employer changed its reasons for termination.

CSS extensively argued that it did not change its reasons for termination because all the reasons related to the same note-passing incident. The Tenth Circuit disagreed noting that while the explanations may relate to the same incident, "they provide distinct reasons for Fassbender's termination." Id. The Tenth Circuit reasoned that CSS' shifting reasons for terminating Fassbender, the supervisor's comments about the pregnant employees, and Fassbender's proper handling of the second note were all circumstantial evidence of pretext. After holding that a reasonable jury could use the evidence to conclude that Fassbender was discriminated against, the Tenth Circuit reversed the case for a jury trial.

The Fassbender opinion is a reminder to employers to stay consistent and to not nitpick the reasons for termination. Termination reasons should be easily explainable. If you cannot explain why the employee deserves to be terminated in two to three sentences, you may need to reconsider your decision. While a poorly explained termination reason may get an employer into trouble down the road, a changing termination reason will almost always result in a jury trial.

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