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Changing reasons for termination can be a real problem for employers.  This is often a lesson management side labor and employment lawyers spout to their clients over and over again.  One employer in Kansas unfortunately learned this lesson the hard way. 

In Fassbender v. Correct Care Sols., LLC, 2018 U.S. App. LEXIS 12556, Fassbender, the plaintiff, was a medication aide at a prison.  Fassbender worked for Correct Care Solutions (“CCS”), a contractor, not the prison directly.  She, along with two other members of her department, were pregnant.  Fassbender’s direct supervisor, a female, when learning of plaintiff’s pregnancy stated “What, you’re pregnant too?”  The supervisor also was overheard saying “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.”

The prison had a strict fraternization policy which prohibited employees from taking correspondence from an inmate out of the facility.  During one of Fassbender’s shifts, an inmate put a note on her medication cart.  Fassbender took the note home and read it.  The next day she reported the note to four prison officials, not her direct supervisor who worked for CCS.  Ultimately, Fassbender’s supervisor issued her a final written warning for (1) failure to report a serious issue to her immediate supervisor and (2) failure to follow proper policy and procedure as outlined in the employee handbook and instructed at orientation. 

A day later, another inmate gave Fassbender another note which she promptly reported.  She was suspended and the next day, terminated.  Her supervisor told Fassbender she was terminated because of “the severity of CCS findings” without elaboration.  The next day Fassbender spoke to someone in Human Resources who said she was terminated for not reporting the first note sooner. 

Fassbender then filed an EEOC Charge against CCS for pregnancy discrimination and sexual harassment retaliation. In its position statement in response to Fassbender’s EEOC Charge, CCS stated the reason for termination was (1) she failed to report the note to her direct 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. Upon receiving a dismissal and notice of right to sue, Fassbender filed a lawsuit in federal district court.  Her employer ultimately moved to dismiss the case and in their filings with the Court stated the sole reason for termination was because Fassbender took correspondence from an inmate home in violation of the fraternization policy. 

The district court granted CCS’s motion for summary judgment but the Tenth Circuit Court of Appeals, the federal appellate court which covers Kansas, reversed.  The Circuit Court held the supervisor’s comments about Fassbender’s pregnancy could evince a discriminatory motive because the jury could find Fassbender’s looming maternity leave posed an inconvenience to the supervisor.  Additionally, there was evidence of pretext because CCS continued to change its reason for termination which was evidence that it knew none of the reasons for discharge were true.

For employers this case should serve as a cautionary tale.  Consistency is key when it comes to explaining the reasons for termination.  The reason the employer tells the employee, puts on the unemployment paperwork, puts in its position statement to the EEOC, and states with the court must all be the same.  If not, the employer puts the former employee in a great position to argue the company made up the reason for termination and the true reason was discrimination!  This is exactly what happened with CCS.  This case also highlights the importance of responding carefully to an administrative charge.  While most employers view the process as a nuisance and not worthy of significant time and effort, this case proves what the employer says to the administrative agency can come back to bite them if not carefully and methodically planned.  Therefore, employers would be wise to seek competent labor and employment counsel when responding to administrative charges and throughout the entire discharge process.

Brody and Associates regularly provides counsel on civil rights issues and employment laws in general.  If we can be of assistance in this area in any states where we are licensed, please contact us at info@brodyandassociates.com or 203.454.0560.