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Fassbender v. Correct Care Solutions, LLC

United States Court of Appeals, Tenth Circuit

May 15, 2018

ALENA FASSBENDER, Plaintiff - Appellant,

          Appeal 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 Plaintiff-Appellant.

          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.

          Before BRISCOE, McHUGH, and MORITZ, Circuit Judges.


         Correct 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.

         We 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.


         CCS is 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.

         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 Thompson sounded "very angry and frustrated compared to how she usually sounds" when she said this. Id.

         A few 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 note said:

What up sexy lady how was your night at work, good I hope not tir[]ing 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, sometime[]s 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.

         At no 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.

         Thompson 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.

         When 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.

         At some 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 terminate Fassbender.

         The 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.

         Thompson 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 the record.

         Also 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 terminate her.

         Before 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 incident report.[1]

         Thompson 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 her pregnancy.

         The 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 terminated.

         Rice 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.

         A week 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 home.

         Fewer 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 ...

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