Reviving a pregnancy discrimination claim brought by a prison medication aide who ostensibly was terminated for violating the protocol against fraternizing with inmates, the Tenth Circuit noted her supervisor’s angry lament that “I have too many pregnant workers,” as well as the shifting reasons for her discharge, among other factors, in concluding she should have a fighting chance to prove her case through circumstantial evidence at trial. While the employer argued her supervisor’s remarks “were nothing more than routine concerns related to employee leaves of absence and scheduling,” these expressions of frustration over impending staffing woes due to multiple maternity leaves, ipso facto, could show discriminatory motive, the appeals court noted, adding that “[w]hether the comments reflect some disdain towards pregnant women as a class doesn’t enter into the equation.” However, the employee’s alternative claim that she was fired in retaliation for reporting inmate sexual harassment was properly dismissed on summary judgment (Fassbender v. Correct Care Solutions, LLC, May 15, 2018, Moritz, N.).
“You’re pregnant too?” The employee worked for CCS, a national health services company that contracts with prisons and jails to provide care for inmates. She was employed as a certified medication aide at a Kansas detention center for about six months before she was fired. Her supervisor, the CCS administrator on-site, overheard her discussing her pregnancy and remarked, “What, you’re pregnant too?” When she learned a few days later that yet another employee was pregnant, she said: “[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.” On another occasion, a coworker heard the supervisor comment: “I have too many pregnant workers[.] I don’t know what I am going to do with all of them.” She sounded “very angry and frustrated,” according to the witness account.
Notes from inmates. One day while the employee was making her medication rounds, an inmate slipped a note onto her medicine cart. The employee brought the note home to read that night. The contents startled her—the inmate seemed to know too much about her personal life and seemed to suggest he wanted a sexual relationship. She wasn’t scheduled to work the next day, yet she brought the note in to the detention center to report it to officials there. They gave no indication at the time that she violated policy in her handling of the situation; in fact, she was told she did the right thing by bringing the note to their attention.
The next day, she notified her own on-site supervisor about the note. She was told she violated procedure for waiting two days to inform CCS and for bringing the inmate’s note home. Shortly thereafter, she received another note from another inmate, which she promptly reported through the proper channels, as instructed. Nevertheless, she was suspended and then fired for her handling of the first note.
Reason for discharge? The employee wasn’t sure why she was discharged; her supervisor didn’t submit the usual narrative that is typically attached to CCS termination requests (instead; she simply attached the employee’s account of the incident). Responding to the employee’s query to HR about why she was fired, CCS informed her that she had held onto the inmate’s note for a long time; she didn’t report the incident the same day; and she failed to first report the inmate’s note to her CCS supervisor. They also said she was fired because she had discussed personal matters with the inmate, or at least within earshot of him, possibly breaching a policy against fraternization with inmates. Although there was no actual evidence of an improper relationship, familiarity was presumed from the contents of the note; for its part, the detention center theorized the inmate was simply engaging in “mind games” with the employee.
Notably, the employer did not say it fired her for taking the inmate’s note home, however—which was an express breach of stated policy, and a fact the employee had candidly conceded all along. In fact, in its description of the incident, CCS never made mention of this fact. Only later, in its summary judgment motion, did it assert that she was fired solely because she brought the inmate’s note home, “in violation of” the fraternization policy.
Indirect evidence. The Tenth Circuit reversed summary judgment in the employer’s favor on the pregnancy discrimination claim. While it rejected the employee’s contention that her supervisor’s three comments about pregnant employees constituted direct evidence that she was fired because of her pregnancy, it found the remarks to be compelling circumstantial evidence, coupled with the shifting reasons for her discharge. These were no mere “elaborations” of their earlier justifications, the appeals court concluded; they were distinct, inconsistent reasons, most of which were eventually abandoned in favor of a single reason.
The appeals court also found it noteworthy that, although the supervisor said she worried the employee would violate the policy again, the employee had handled the second inmate note precisely according to protocol yet was suspended the very next day, which could undermine any genuine concerns of a repeat offense and suggest instead there was a nefarious motive underfoot. The court also saw evidence of pretext in her supervisor’s failure to attach a narrative to her termination request, which should have offered an explanation how the employee broke the rules, and a justification for the discharge. Was this procedural irregularity the employer’s attempt to preserve some wiggle room in explaining why it fired her?, the court wondered.
The circumstances of her discharge were “sufficiently suspicious” for a rational jury to find (based on the totality of the evidence—if not the independent pieces, the appeals court emphasized), that the proffered reason for her discharge was pretext. Drawing all reasonable inferences in her favor, “a coherent narrative emerges” in which the note from the inmate became an excuse to terminate the employee, thereby eliminating one pregnant worker from the ranks. And while CCS offered a “plausible counter-narrative,” it was for the jury to choose between the two.
About those “innocuous” remarks. As for those supervisor comments, while the employer insisted the “innocuous” remarks did not evidence any animus on the supervisor’s part toward pregnancy, the employee argued they revealed an underlying motive to reduce “the number of pregnant employees on her roster.” The appeals court agreed that a discriminatory motive could be inferred even if they simply reflected the supervisor’s concerns about managing her unit while her employees would be out on maternity leave. It was precisely because of these “looming” leaves and the inconvenience they posed that a jury might have cause to find the employee was terminated to minimize that burden. And, while the employer insisted it would take a “higher level of animosity” than this for a jury to find a discriminatory motive, the appeals court cited evidence that at least one of those comments was made in anger. “It’s reasonable to infer that [the] comments reflected some hostility or frustration toward pregnant employees.”
CCS also urged that none of the other pregnant employees faced an adverse employment action, but the court reasoned that a jury could conclude the supervisor was merely looking to reduce the number of pregnant employees on her staff, not eliminate them outright. Also, the employer noted that it hired a pregnant employer just months after firing the plaintiff, but this was after she already had filed her EEOC charge, so the employer could well have seen the litigation writing on the wall and reacted accordingly to minimize any whiff of animus.
Finally, the court found reason for a jury to doubt the supervisor’s deposition testimony that she didn’t recall making the offending comments. Her failed recollection was unconvincing given that the record showed she had been “coached” by her own superiors for her loose tongue and told to be “careful” in the future. And it was just weeks later that the employee filed her EEOC charge, with her lawsuit filed mere months later. Given that the supervisor’s comments were central to the case, her deposition testimony 15 months later that she didn’t recall making them could leave a jury to find the supervisor demonstrated a “consciousness of guilt” about making the comments.
Retaliation claim fails. The appeals court affirmed summary judgment in the employer’s favor on the employee’s retaliation claim, though, as it was unconvinced she engaged in protected activity when she reported the inmate’s note. She could not have reasonably believed she was reporting discrimination. The alleged sexual harassment did not alter her conditions of employment and she could not have thought otherwise. Nor could a jury believe she was terminated for opposing unlawful sexual harassment.
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