from the United States District Court for the District of
Kansas (D.C. No. 2:15-CV-09373-JWL)
Kenneth D. Kinney (Kirk D. Holman with him on the briefs),
Holman Schiavone, LLC, Kansas City, Missouri, for
Jennifer K. Oldvader (Trina R. Le Riche with her on the
brief), Ogletree, Deakins, Nash, Smoak & Stewart, P.C.,
Kansas City, Missouri, for Defendant-Appellee.
BRISCOE, McHUGH, and MORITZ, Circuit Judges.
MORITZ, CIRCUIT JUDGE.
Care Solutions, LLC (CCS) terminated Alena Fassbender's
employment-ostensibly for violating CCS policy. But
Fassbender, who was pregnant at the time of her termination,
argues there is more to this story than meets the eye. She
asserts that CCS terminated her because it had one too many
pregnant workers in Fassbender's unit, which posed a
problem for her supervisor.
conclude that a reasonable jury could believe
Fassbender's version of events. Accordingly, we reverse
the portion of the district court's order granting CCS
summary judgment on Fassbender's pregnancy discrimination
claim under Title VII of the Civil Rights Act of 1964, 42
U.S.C. §§ 2000e-2000e-17. But because we agree that
no reasonable jury could believe Fassbender's alternative
claim that CCS terminated her in retaliation for reporting
sexual harassment, we also affirm in part.
a nationwide healthcare-services company that contracts with
jails and prisons to provide care for inmates. CCS employed
Fassbender as a certified medication aide at the Wyandotte
County Detention Center (the Detention Center) in Kansas
City, Kansas, from November 2014 until it terminated her in
May 2015. CCS subjects its employees to a fraternization
policy, which broadly forbids "undue familiarity"
between CCS employees and the inmates at the facilities they
serve. App. 470. The policy further lists a range of more
specific activities that it forbids, including, among other
things, business transactions with inmates, sexual activity
with inmates, sharing personal information with inmates,
exchanging gifts with inmates, and, most relevant here,
"tak[ing] out [of] the facility any correspondence"
from an inmate. Id. at 471. The policy also mandates
that "[a]ny violations of the . . . policy are to be
reported to a member of CCS management or Human
Resources." Id. at 472.
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 Thompson sounded "very angry and
frustrated compared to how she usually sounds" when she
said this. Id.
weeks later, on Thursday, April 30, 2015, an inmate gave
Fassbender a handwritten note. The inmate slipped the note
onto Fassbender's medicine cart while she was
distributing medicine in one of the Detention Center's
cell blocks. Fassbender didn't immediately read the note;
instead, she took it home and read it later that night. The
What up sexy lady how was your night at work, good I hope not
tiring cause you had 3 days off and I wasn't able to
see your beautiful face, [expletive] I thought you quit on us
but I knew you wouldn't let that happen. Anyway you know
I have told you in many ways that I like you, sometimes I
just get caught up on what to say cause I don't want us
to get in trouble so I just kept it on small talk so it would
be cool if we were good friends, I know you have a beautiful
son and one on the way (Girl) but most of all you have a
great sense of humor and a nice personality you are down to
earth, sweet, honest that's why I like you. I know you
said we could be friends but what kind of friend just hi see
you later or what if you are serious about this let me know.
[A]nd [h]ow old are you? I'm 31. [I]f you write back
write as (La La) that is your nick name from me to you!
Id. at 425. The note alarmed Fassbender because it
contained personal information that she hadn't discussed
with the inmate and it seemed to suggest that the inmate
wanted to have a sexual relationship with her. Fassbender
wasn't scheduled to work the next day (Friday, May 1) but
she went to the Detention Center late in the afternoon to
report the note to Detention Center officials. She met with
four officials who worked directly for the Detention
Center-not for CCS. They assured Fassbender that they would
discipline the inmate and warned Fassbender to be wary of
inmates playing "mind games" like this.
Id. at 360.
point in this meeting did the officials tell Fassbender that
she did anything wrong; indeed, they told Fassbender she did
the right thing by reporting the note to them. But after the
meeting, one of the Detention Center officials called
Thompson to report the incident and express her displeasure
at how Fassbender handled it. Specifically, the official
complained that Fassbender accepted the note, took it home,
and waited more than 24 hours to report it. This call was the
first time that Thompson heard anything about the note.
called her offsite supervisor, Lynn Philpott, later that
night, May 1. Thompson couldn't recall the details of
this conversation during her deposition except that Philpott
told Thompson she should confer with Detention Center
officials and with members of CCS' employee-relations
department (HR) to determine how to best resolve the
incident. Thompson then called Patricia Rice, an HR employee.
Thompson explained the situation, and Rice told Thompson that
Thompson should investigate to determine why Fassbender took
the note home and waited as long as she did to report it.
Rice also told Thompson that she should suspend Fassbender
while she investigated.
Fassbender came in for her shift the next day (Saturday, May
2), Thompson confronted her about going over Thompson's
head to the Detention Center officials. Fassbender told
Thompson that she didn't realize she did anything wrong.
Thompson explained that instead of reporting the note to the
Detention Center officials, Fassbender should have (1) given
the note to a guard as soon as the cell block was cleared of
inmates and (2) immediately reported the incident to
Thompson. Thompson reprimanded Fassbender and gave her a
written warning for "[f]ailure to report a serious issue
to [her] immediate supervisor" and "[f]ailure to
follow proper policy and procedure as outlined in the
employee handbook and instructed at orientation."
Id. at 474. According to Fassbender, Thompson said
this was a "final warning, " which meant that
Fassbender would be terminated "if anything happened
again." Id. at 362. Thompson didn't suspend
Fassbender at this point, even though Rice instructed
Thompson to do so the night before.
other point that day (Saturday, May 2), Thompson spoke on the
phone with the Detention Center's administrator,
Lieutenant Colonel Jeffery Fewell, about Fassbender. Fewell
told Thompson that the incident worried him because the note
suggested an improper level of familiarization between
Fassbender and the inmate. He opined that Fassbender's
conduct violated both the Detention Center's and CCS'
fraternization policies. He also cautioned that it would
reflect poorly on both Thompson and himself if something
happened between Fassbender and the inmate. But Thompson
testified that Fewell never specifically asked her to
next day (Sunday, May 3), by apparent coincidence, it
happened again: another inmate left a note on
Fassbender's cart while she was administering medication.
This time, Fassbender followed Thompson's
instructions-she gave the note to a guard and then
immediately called Thompson to report the incident. Thompson
asked Fassbender to write an incident report and send it to
her. Fassbender complied.
had another series of conversations with CCS and Detention
Center officials on Monday, May 4. Thompson, Rice, and Julie
Lindsey-another HR employee-spoke several times throughout
the day. The details of these conversations aren't clear,
but at some point Thompson recommended terminating
Fassbender, and Rice and Lindsey concurred. Thompson
testified that they based this decision on "the severity
of the breach in the policy[, ] . . . the security of the
facility[, ] and the concerns of the client."
Id. at 411. The same day, Thompson also met with
Fewell, who repeated the concerns he expressed in his call
with Thompson the prior Saturday. And Thompson spoke with
Philpott again that afternoon, but there's no testimony
or other evidence about the details of that conversation in
that same day, Thompson finally told Fassbender that she had
been suspended-but Thompson didn't tell Fassbender at
this point that she had been terminated. It's not clear
if Thompson suspended Fassbender before or after deciding to
terminating Fassbender, CCS policy required Thompson to
submit a termination-request form to Philpott with a
narrative attached that explained her reasoning for
terminating Fassbender. Philpott was then required to approve
the termination by signing the form. Thompson submitted the
form on Tuesday, May 5, and she indicated on the form that
she attached a narrative explaining the reasons for the
termination. But instead of attaching her own narrative,
Thompson attached a narrative that Fassbender wrote for an
then called Fassbender the next day (Wednesday, May 6) and
terminated her. Fassbender testified that Thompson told
Fassbender that she was being terminated because of "the
severity of [CCS'] findings" without elaborating on
what those findings were. App. 367. Fassbender testified that
she was confused about why she was terminated, so she
contacted HR to learn more. After several failed attempts to
get in touch with someone about her termination, 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
next day (Friday, May 8), Rice and Lindsey called Fassbender
and said she was terminated for not reporting the note
sooner. Lindsey summarized this conversation in a memorandum,
which didn't specifically mention anything about
Fassbender taking the note home as a reason for her
termination. And Lindsey later testified that the reason
given in the memorandum-that Fassbender didn't report the
note sooner-reflected her understanding of why Fassbender was
sent Popp, her supervisor, a report that same day explaining
that they terminated Fassbender because she took the note
home and didn't report it to anyone from CCS for more
than two days. At some point after speaking with Fassbender,
Rice and Lindsey also called Thompson to "coach"
her to be careful when commenting on employees'
pregnancies in the future. App. 323. Lindsey testified that
Thompson acknowledged during this conversation that she had
made these comments.
after her termination, Fassbender filed a charge of
discrimination with the Equal Employment Opportunity
Commission (EEOC) accusing CCS of terminating her because of
her pregnancy. CCS explained in its June 16, 2015 response
letter that it terminated Fassbender "because she
violated the Fraternization Policy." Id. at
453. More specifically, it explained that it terminated her
because (1) she failed to report the inmate's note to
Thompson, (2) she didn't report the incident the same
day, and (3) she discussed personal matters either with the
inmate or within earshot of the inmate. CCS didn't
indicate in its response letter that it terminated Fassbender
for taking the note home; in fact, it didn't mention in
its description of the events that Fassbender took the note
than six months after CCS terminated Fassbender, she filed
this action in the district court in November 2015, claiming
that CCS terminated her because she was pregnant and as
retaliation for reporting the note, which she argued was
sexual harassment. CCS moved for summary judgment in
September 2016 after several months of discovery. In its
summary-judgment motion, CCS asserted that it terminated
Fassbender solely ...