Jeremy Schrag, a partner in our Wichita office, sent me the following synopsis of a 10th Circuit decision that reminds us that termination reasons should be legitimate, nondiscriminatory, easily explainable, and unchanging. In Fassbender v. Correct Care Sols., LLC, the Court sent a case back for a jury trial because the employer’s reasons for termination kept changing.
The plaintiff worked as a medication aide for a company that provided medical services at prisons throughout the country. After learning that she was pregnant, her 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.”
Important Practice Tip: while it's understandable that a supervisor faced with significant long-term attendance issues in his female staff because of pregnancy might be frustrated, expressing it in such a manner is not advisable.
During one of her prison visits, the plaintiff received a note from an inmate indicating he knew personal information about her and wanted a sexual liaison with her. She took the note home and waited more than 24 hours before telling her supervisor about the incident, in violation of company policy that such activities be immediately reported. The following day another inmate left a note on her cart; she immediately reported this event.
The next day the company terminated her employment. And then the fun, or, depending on your point of view, the obfuscation, started. The plaintiff was initially told she was terminated because she violated the company's fraternization policy. Then someone told her it was because of the "severity" of her offense. Confused, she went to human resources which told her she was fired because she failed to report the first note immediately. An internal memorandum indicated she was fired because she failed to timely report the note, and took the note home. After the plaintiff filed an EEOC charge, the company said she was terminated because she failed to report the inmate's note to her supervisor, she did not report the incident the same day, and she discussed personal matters either with the inmate or within earshot of him. Finally, in a summary judgment motion, the company indicated that it fired the plaintiff solely because she took the inmate note home with her in violation of the fraternization policy.
One of the easiest ways to lose an employment case is to have multiple reasons for an adverse employment action, expressed at various points in the termination/litigation process. The fact that the company could not get its story straight meant that there was an issue of fact as to why it actually fired the plaintiff. Multiple, inconsistent reasons for termination are frequently seen by the courts, and juries, as a smokescreen to hide the real reason for firing, in this case, pregnancy. Which is exactly how the Tenth Circuit saw things. It reversed summary judgment for the company and sent the case back to trial.
