Fassbender v. Correct Care Solutions , 890 F.3d 875 ( 2018 )

FILED
United States Court of Appeals
PUBLISH Tenth Circuit
UNITED STATES COURT OF APPEALS May 15, 2018
Elisabeth A. Shumaker
FOR THE TENTH CIRCUIT Clerk of Court
_________________________________
ALENA FASSBENDER,
Plaintiff - Appellant,
v. No. 17-3054
CORRECT CARE SOLUTIONS, LLC,
Defendant - Appellee.
_________________________________
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.
_________________________________
MORITZ, Circuit Judge.
_________________________________
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.
Background
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.
2
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
3
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
4
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
5
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
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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
1
In the report, Fassbender recounted the incident as follows:
I was in H pod on 4/30/15 at 1015 passing medications out to the
inmates, the pod officer at the time was Deputy Cole. During this time,
inmate REDACTED approached me for his meds [and] while he was
there he dropped a piece of paper on my med cart. Deputy Cole was
standing by the officer’s desk at the time. I pushed it to the side [and]
continued on with my med pass [and] did not look at it until later in the
day when I realized it was a letter written to me that did not pertain to
my job duties [and] was inappropriate. I had started feeling unwell [and]
I was not sure of the protocol to follow for such a case so I went home
at the end of my shift [and] did not report it at the time. The following
day, I called [and] asked to speak with a sergeant about the matter. I
told Sergeant Rome I needed to report something to him in person so I
came in to the facility [and] met with him [and] Major Eickhoff.
Lieutenant McCullough [and] Sergeant Harmon were also present. I
7
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
gave Sergeant Rome the letter; both he [and] Major Eickhoff read it
[and] briefed me on inmate con games [and] how they will try to
manipulate staff into doing things for them.
App. 469 (redaction in original).
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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 because she took “correspondence from an inmate
home in violation of” the fraternization policy. Id. at 74.
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The district court granted CCS’ motion. It determined that Fassbender failed to
present direct evidence of pregnancy discrimination or sufficient evidence for a
rational jury to find that CCS’ proffered reason for firing her was pretextual. It
further ruled that Fassbender couldn’t succeed on her retaliation claim because she
failed to present enough evidence to show that she reasonably believed the inmate’s
note was sexual harassment. Fassbender appeals.
Analysis
We review the district court’s order granting summary judgment de novo,
applying the same standard as the district court. Birch v. Polaris Indus., Inc., 812
F.3d 1238, 1251 (10th Cir. 2015). We view the evidence in the light most favorable
to, and draw all reasonable inferences in favor of, the nonmoving party. Gutierrez v.
Cobos, 841 F.3d 895, 900 (10th Cir. 2016). Summary judgment is only appropriate if
“there is no genuine dispute as to any material fact and the movant is entitled to
judgment as a matter of law.” Fed. R. Civ. P. 56(a). There is a genuine dispute of
material fact “if a rational jury could find in favor of the nonmoving party on the
evidence presented.” EEOC v. Horizon/CMS Healthcare Corp., 220 F.3d 1184, 1190
(10th Cir. 2000).
I. Pregnancy Discrimination
Fassbender first argues that CCS terminated her because she was pregnant.
Title VII prohibits employers from terminating an employee because of the
employee’s sex and, more specifically, because the employee is pregnant.
§§ 2000e(k), 2000e-2(a)(1). Fassbender asserts two theories in support of this claim:
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(1) that Thompson’s comments are direct evidence of pregnancy discrimination; and
(2) that the totality of the circumstances surrounding her termination presents enough
circumstantial evidence of discrimination to warrant relief under the Supreme Court’s
McDonnell Douglas standard. See McDonnell Douglas Corp. v. Green, 411 U.S. 792(1973). We examine each of these theories below.
A. Direct Evidence
When a Title VII plaintiff presents direct evidence of discrimination, the
McDonnell Douglas burden-shifting analysis doesn’t apply. Trans World Airlines,
Inc. v. Thurston, 469 U.S. 111, 121 (1985). “Direct evidence demonstrates on its face
that the employment decision was reached for discriminatory reasons.” Danville v.
Reg’l Lab Corp., 292 F.3d 1246, 1249 (10th Cir. 2002). Evidence of discrimination,
if believed, is only direct evidence if it “proves the existence of a fact in issue
without inference or presumption.” Riggs v. AirTran Airways, Inc., 497 F.3d 1108,
1117 (10th Cir. 2007) (quoting Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 855 (10th
Cir. 2007)).
Fassbender argues that Thompson’s three comments about her employees’
pregnancies are direct evidence that Thompson terminated Fassbender because of her
pregnancy. But a supervisor’s animosity towards a protected group generally is not—
on its own—direct evidence of discrimination. Rather, the plaintiff must show that
the supervisor “acted on his or her discriminatory beliefs.” Tabor v. Hilti, Inc., 703
F.3d 1206, 1216 (10th Cir. 2013).
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Fassbender argues that this case is similar to Tabor. In that case, the decision-
maker explicitly told a female job candidate—during her interview for a job selling
tools—“that women have inferior knowledge of tools and inferior ability to sell
tools.” Id. at 1217. Perhaps unsurprisingly, two male candidates were selected for the
open positions. See id. at 1213. We held that “[t]he content of [the decision-maker’s]
statements, the interview context, and the temporal proximity to the adverse
employment decision” created direct evidence of sex discrimination. Id at 1217.
Fassbender argues that this case is similar to Tabor because Thompson
negatively commented on her employees’ pregnancies and terminated Fassbender in
close temporal proximity to those comments. We disagree. The decision-maker’s
comments in Tabor came during the job interview and directly related to the
candidate’s qualifications for the job. See id. at 1217. By contrast, Thompson made
the comments at issue about a month before terminating Fassbender. And although
Thompson arguably expressed a desire to have fewer pregnant subordinates, she
didn’t suggest that Fassbender’s pregnancy somehow made her unqualified for her
position.
The more apt comparison is to Perry v. Woodward, 199 F.3d 1126 (10th Cir.
1999). In Perry, a Hispanic Title VII plaintiff presented evidence that, before she was
terminated, her supervisor made numerous comments disparaging Hispanics. See id.
at 1131. The plaintiff’s supervisor even told the plaintiff that she would start sitting
in on job interviews conducted by the plaintiff “to ensure that [the plaintiff] ‘hired
some Anglos.’” Id. But we nevertheless held that the plaintiff didn’t present direct
12
evidence of discrimination because she didn’t show “a causal nexus” between the
supervisor’s discriminatory beliefs and hiring policy and the plaintiff’s termination.
Id. at 1134.
Here, Thompson’s comments don’t show a causal nexus any more than the
supervisor’s comments in Perry did. In both cases, the comments arguably reflect an
animosity towards the protected group (Hispanics in Perry, pregnant women here)
and even a desire to have fewer members of the protected group as employees. But
there’s no evidence in either case that “demonstrates on its face that” the decision-
maker acted on this nefarious motive. Danville, 292 F.3d at 1249. Accordingly,
Thompson’s comments don’t constitute direct evidence of pregnancy discrimination.
B. Circumstantial Evidence
Fassbender’s lack of direct evidence doesn’t doom her discrimination claim;
Title VII plaintiffs who can’t show direct evidence of discrimination may
nevertheless prove discrimination through circumstantial evidence. See Riggs, 497
F.3d at 1118. And Fassbender argues that she can do so at trial.
We apply the Supreme Court’s McDonnell Douglas three-step burden-shifting
framework to evaluate whether circumstantial evidence of discrimination presents a
triable issue. Hiatt v. Colo. Seminary, 858 F.3d 1307, 1315–16 (10th Cir. 2017). The
first step of this framework requires Fassbender to establish a prima facie case of
discrimination. Bird v. W. Valley City, 832 F.3d 1188, 1200 (10th Cir. 2016). One
way to do so is to show that (1) Fassbender was a member of a protected class (2)
who was terminated (3) despite being qualified for her position, and (4) the job
13
wasn’t eliminated. See Perry, 199 F.3d at 1135. We’ve explained that the purpose of
this first step is to exclude “the two most common, legitimate reasons for
termination, i.e., lack of qualification or the elimination of the job.” Id. at 1140.
If Fassbender succeeds in establishing a prima facie case, “[t]he burden of
production then shifts to [CCS] ‘to articulate a legitimate, nondiscriminatory reason’”
for Fassbender’s termination. Bird, 832 F.3d at 1200 (quoting EEOC v. PVNF, LLC,
487 F.3d 790, 800 (10th Cir. 2007)). If CCS meets this burden, then the analysis
moves to the third step of the McDonnell Douglas framework, under which
“summary judgment is warranted unless [Fassbender] can show there is a genuine
issue of material fact as to whether the proffered reasons are pretextual.” Plotke v.
White, 405 F.3d 1092, 1099 (10th Cir. 2005). To determine whether Fassbender has
met her third-step burden, we must consider the evidence of pretext in its totality.
Beaird v. Seagate Tech., Inc., 145 F.3d 1159, 1174 (10th Cir. 1998).
Here, the parties only seriously dispute pretext. CCS doesn’t contest that
Fassbender can meet the elements of a prima facie case—that is, it doesn’t contest
that Fassbender was pregnant, that she was qualified to be a certified medication
aide, that her employment was terminated, or that her job wasn’t eliminated. And
Fassbender agrees that CCS articulates a legitimate, non-discriminatory reason for
firing her: she took the note home. Thus, this issue turns on whether a rational jury
could infer that Fassbender taking the note home was a pretext for her termination.
The circumstances surrounding Fassbender’s termination are sufficiently
suspicious for a jury to draw this inference. Fassbender cites to several reasons that a
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jury could reach this conclusion. We don’t opine on whether any one of these reasons
shows pretext on their own. But looking to the totality of the circumstances, we find
sufficient suspicion surrounding Fassbender’s termination to send this case to a jury.
See Beaird, 145 F.3d at 1174.
We begin where we left off with Fassbender’s direct-evidence argument:
Thompson’s comments. Recall that at various times in the weeks before Fassbender’s
termination, Thompson made the following remarks: (1) “What, you’re pregnant
too?” App. 219; (2) “I don’t know how I’m going to be able to handle all of these
people being pregnant at once,” id.; and (3) “I have too many pregnant workers, I
don’t know what I am going to do with all of them,” id. at 490.
We have considered evidence of a supervisor’s bias against a protected group
as evidence of pretext if that bias “might have affected . . . decisions adverse to [the]
plaintiff.” Ortiz v. Norton, 254 F.3d 889, 896 (10th Cir. 2001). But we have also
cautioned that “anecdotal evidence of discrimination should only be admitted if ‘the
prior incidences of alleged discrimination can somehow be tied to the employment
actions disputed in the case at hand.’” Stewart v. Adolph Coors Co., 217 F.3d 1285,
1289 (10th Cir. 2000) (quoting Heno v. Sprint/United Mgmt. Co., 208 F.3d 847, 856
(10th Cir. 2000)). In EEOC v. BCI Coca-Cola Bottling Co. of Los Angeles, 450 F.3d
476 (10th Cir. 2006), we found that a plaintiff met his burden by presenting evidence
that his supervisor made racial comments in the past that “suggest[ed] a pattern of
racial bias in disciplinary matters that could have affected [the supervisor’s] conduct
with respect to [the plaintiff’s] termination.” Id. at 489.
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Fassbender argues that Thompson made the comments about her employees’
pregnancies “out of frustration and anger,” and that they reveal her motive to reduce
“the number of pregnant employees on her roster.” Aplt. Br. 26. CCS responds that
Thompson’s comments were “innocuous,” “do not reflect a negative attitude toward
pregnancy,” and “were nothing more than routine concerns related to employee
leaves of absence and scheduling.” Aplee. Br. 23–24.
We decline to conclude that Thompson’s comments were “innocuous” for two
reasons. Id. at 23. First, the comments could evince a discriminatory motive even
assuming, as CCS argues, that Thompson’s comments “merely show [her] concern
with managing the medical unit at a time when multiple employees were pregnant
(and would ultimately need maternity leave).” Aplee. Br. 23. It’s exactly because
Fassbender’s pregnancy—and looming maternity leave—posed an inconvenience to
Thompson that a jury could conclude that Thompson terminated Fassbender to ease
that burden. Thompson’s comments thus suggest a discriminatory motive that “could
have affected [Thompson’s] conduct with respect to [Fassbender’s] termination.” BCI
Coca-Cola, 450 F.3d at 489. Whether the comments reflect some disdain towards
pregnant women as a class doesn’t enter into the equation. See Hall v. Family Care
Home Visiting Nurse & Home Care Agency, LLC, 696 F. Supp. 2d 190, 197, 201 (D.
Conn. 2010) (concluding jury could find pretext based in part on decision-maker’s
comments, upon learning of plaintiff’s pregnancy, that he now had “two girls going
on maternity leave” and he “can’t hire the girls anymore that are young”), amended
16
in part on other grounds, No. 3-07-CV-0911 (JCH), 2010 WL 1487871 (D. Conn.
Apr. 12, 2010).
But we couldn’t entirely discount Thompson’s comments even if CCS is
correct that they must reflect a higher level of animosity to lead a jury to conclude
that Thompson harbored a discriminatory motive when she terminated Fassbender.
There is evidence in the record that Thompson made at least one of her comments
angrily, and the record doesn’t establish the tone of her other comments. It’s
reasonable to infer that Thompson’s comments reflected some hostility or frustration
toward pregnant employees, so we must draw that inference in Fassbender’s favor.
See Gutierrez, 841 F.3d at 900.
Urging us to reach the opposite conclusion, CCS argues this case is
indistinguishable from Fjelsta v. Zogg Dermatology, PLC, 488 F.3d 804 (8th Cir.
2007). There, as here, the plaintiff based her pregnancy-discrimination claim on her
employer’s vocalization that the multiple pregnancies in his office posed an
inconvenience. See id. at 807–08. But the court didn’t reach the issue of pretext in
Fjelsta. Instead, it first held—as we do above—that the employer’s comments
weren’t direct evidence of discrimination. See id. at 809–10. And it then concluded,
for unrelated reasons that aren’t relevant here, that the plaintiff didn’t meet her prima
facie burden. See id. at 810. So the burden never shifted to the employer to articulate
a nondiscriminatory reason for terminating the plaintiff, and the burden never shifted
back to the plaintiff to show this reason was pretextual. Thus, despite any factual
similarities between the two cases, the Fjelsta court’s actual analysis says nothing
17
about whether Thompson’s comments are sufficient to demonstrate pretext. To the
extent that the court suggested the comments couldn’t be probative circumstantial
evidence of pregnancy discrimination, this language is dicta, and we aren’t persuaded
to follow it.
CCS further invites us to minimize Thompson’s comments because (1) none of
her other pregnant employees faced adverse employment actions, and (2) Thompson
hired a pregnant employee as a certified medication aide fewer than four months after
terminating Fassbender. But a reasonable jury could conclude that Thompson merely
sought to reduce—not eliminate—her roster of pregnant employees. And in light of
Fassbender’s EEOC charge, this litigation could certainly have been anticipated by
the time Thompson hired the new pregnant employee, so a jury could reasonably
question her hiring motivations. Cf. Perry, 199 F.3d at 1137 (explaining that similar
argument would “preclude suits against employers who replace a terminated
employee with an individual who shares her protected attribute only in an attempt to
avert a lawsuit”).
Additionally, CCS argues that even if Thompson chose to terminate
Fassbender because of Fassbender’s pregnancy, a jury still couldn’t tie Thompson’s
discriminatory motive to Fassbender’s termination because Rice and Lindsey were
also involved in the decision-making process. But CCS “has always maintained that
[Thompson] . . . made the decision” to terminate Fassbender and merely consulted
Rice and Lindsey before doing so. Aplee. Br. 29 n.6. When we view the evidence in
the light most favorable to Fassbender, Rice’s and Lindsey’s participation cannot
18
cleanse Thompson’s decision to terminate of whatever animus she might have held.
Cf. BCI Coca-Cola., 450 F.3d at 485 (endorsing “subordinate bias” theories of
discrimination under which biased subordinate either dupes decision-maker into
approving termination or decision-maker acts as rubber-stamp for subordinate’s
decision).
Moreover, as Fassbender argues, a jury could conclude that Thompson evinced
a “consciousness of guilt” about these comments by testifying that she didn’t
remember making them after acknowledging to Rice and Lindsey that she did make
them.2 Aplt. Br. 39 (quoting United States v. Lopez-Garcia, No. 92-8539, 1993 WL
82295, at *1 (5th Cir. Mar. 17, 1993) (per curiam) (unpublished)). Rice and Lindsey
called Thompson specifically to “coach[]” her to be careful not to make similar
comments in the future. App. 323. Fassbender filed a charge of discrimination with
the EEOC mere weeks after Thompson made those comments and commenced the
instant litigation a few months later. Thompson’s comments are central to the EEOC
charge and this litigation. A jury could certainly suspect Thompson would remember
something this significant for at least the approximately 15 months between when
Thompson made the comments and when she professed not to remember them at her
deposition.
2
Fassbender somewhat mischaracterizes the record in her opening brief. She
states that Thompson denied making these comments, but Thompson simply testified
in her deposition that she didn’t specifically recall making the comments. Fassbender
conceded as much at oral argument but argued that a jury could nevertheless find
Thompson’s forgetfulness suspicious.
19
Further muddying CCS’ proffered explanation for Fassbender’s termination is
its failure to consistently identify exactly why it terminated her. We’ve held that a
jury can reasonably infer pretext when an employer is “inconsistent in the reasons it
provide[s] for the termination.” Whittington v. Nordam Grp. Inc., 429 F.3d 986, 994
(10th Cir. 2005). Such inconsistencies include abandoning explanations that the
employer previously asserted. See id.Although CCS has always maintained that it terminated Fassbender for
violating the fraternization policy through actions related to the first inmate note, it
has been inconsistent about which of Fassbender’s particular actions it ultimately
terminated her for. Initially, Thompson vaguely told Fassbender that she was being
terminated because of the “severity” of her offense, without elaborating on which of
Fassbender’s specific acts led to this conclusion. Fassbender testified that she didn’t
know why she was fired. Then, when Fassbender spoke with Rice and Lindsey on
May 8—after Fassbender first alleged discrimination—to shed some light on the
topic, they told her that the main issue was the length of time she held onto the note.
That same day, Rice sent Popp, her supervisor, a report explaining that they
terminated Fassbender because of the length of time it took her to report the note and
because she took the note home.
Moreover, CCS continued to change its position even after Fassbender filed a
formal EEOC charge against it. In its response letter to Fassbender’s EEOC charge,
CCS didn’t mention that Fassbender removed the note from the Detention Center.
Instead, it listed (1) Fassbender’s failure to report the note directly to Thompson,
20
(2) the length of time it took Fassbender to report the note, and (3) the familiarity
with Fassbender that the inmate expressed in the note. Now, on summary judgment,
CCS abandons all of these explanations and offers, as its sole reason for terminating
Fassbender, that she took “correspondence from an inmate home.” App. 74.
This is not an insignificant change in position. That CCS terminated
Fassbender for removing the note from the Detention Center would—if believed—
provide a more definitive explanation than the reasons it primarily set forth at the
time of Fassbender’s termination. The fraternization policy explicitly forbids
removing inmate correspondence from the Detention Center, and Fassbender has
always been candid about the fact that she took the note home.
By contrast, the provision of the fraternization policy that required Fassbender
to report the note to Thompson is more general. It says, “Any violations of the CCS
fraternization policy are to be reported to a member of CCS management or Human
Resources.” App. 472. But it doesn’t give a specific time frame within which such
violations must be reported, and Fassbender did report the note on her initiative—
albeit to the wrong authorities. Further, there’s little evidence that Fassbender had an
improper relationship with the inmate; rather, Detention Center officials theorized the
inmate gave Fassbender the note to play “mind games” with her. App. 360. So a jury
could reasonably infer that CCS abandoned its original explanations in favor of one
that’s harder to assail because it knew that none of the explanations were true.
CCS challenges on two fronts Fassbender’s assertion that its position has
shifted over time. First, it argues that it has been consistent because Rice wrote in her
21
May 8 report to Popp that they terminated Fassbender for taking the note home. But a
jury could reasonably decide not to credit this report for several reasons. Initially,
when Rice spoke with Fassbender the day before Rice created the report, she didn’t
mention anything specific about Fassbender taking the note home; a jury could
question the legitimacy of Rice’s sudden change in position. Moreover, the same
report also cites Fassbender’s delay in reporting the note, her failure to report the
note to Thompson, and the personal information contained in the note as reasons for
Fassbender’s termination. But CCS has since abandoned these as explanations, so a
jury could conclude that the report isn’t reliable. And lastly, Rice sent Popp this
report the day after Fassbender accused Thompson of discrimination, so a jury could
conclude that Rice felt the need to present as strong a case for termination as
possible.
Second, CCS relies on an unpublished decision to argue that it’s entitled to
“elaborate[] on the initial justification for termination.” Aplee. Br. 28 (quoting
Matthews v. Euronet Worldwide, Inc., 271 F. App’x 770, 774 (10th Cir. 2008)
(unpublished)). Matthews doesn’t bind us here. See 10th Cir. R. 32.1(A). But even to
the extent we find its reasoning persuasive, CCS’ shifting explanations aren’t the sort
of specific elaborations on “the more general, earlier justifications” we addressed in
Matthews. 271 F. App’x at 774 (declining to find pretext where employer initially
cited plaintiff’s inability to multitask and perform work on time and then provided
more concrete examples of plaintiff’s struggles to illustrate employer’s specific
concerns).
22
In this case, although CCS’ various explanations all relate to the same
incident, they provide distinct reasons for Fassbender’s termination. Fassbender’s
failure to report the note to Thompson is a discrete violation from her failure to
report the note for more than a day. And both of those violations are separate from
Fassbender taking the note home, which is yet another discrete violation from
Fassbender sharing personal information with an inmate. Fassbender could have
committed any one of these acts without committing any of the others. A jury could
certainly find it significant that (1) CCS failed to consistently identify which of these
acts it terminated her for; and (2) CCS eventually abandoned all of these various
violations as a basis for Thompson’s termination in favor of only a single violation.
Two additional factors could inform the jury’s pretext deliberations. First, a
jury could conclude that Fassbender alleviated Thompson’s legitimate concerns that
she would reoffend when she properly reported the second inmate note. Second, a
jury might be appropriately suspicious of Thompson’s failure to follow internal CCS
policy by requesting Fassbender’s termination without attaching a narrative to her
request that explains her reasons for terminating Fassbender.
Fassbender argues that a jury could conclude that her proper handling of the
second note undermines Thompson’s nondiscriminatory justifications for terminating
her. CCS responds that it’s not our place to judge whether Thompson’s concerns
were objectively reasonable. But CCS misses the point of Fassbender’s argument.
The question isn’t whether we think that Thompson’s concerns about Fassbender
were objectively reasonable in light of how Fassbender handled the second note; the
23
question is whether a reasonable jury could infer that Fassbender’s handling of the
second note indeed alleviated Thompson’s subjective concerns. After all, Thompson
gave Fassbender a formal warning the day before regarding the proper way to handle
this situation, and Fassbender demonstrated that she could follow the proper
procedure the first opportunity she had to do so. Yet Thompson nevertheless
suspended her the very next day. If the jury were to draw such an inference, then it
could further extrapolate that, because Thompson wasn’t worried about Fassbender
reoffending, she might have had some ulterior motive for terminating Fassbender—
possibly Fassbender’s pregnancy.
Next, Fassbender argues that a jury could infer pretext from Thompson’s
failure to submit a narrative when she terminated Fassbender. CCS admits that
Thompson didn’t attach a narrative but argues that this is a “minor irregularity” that
doesn’t support an inference of pretext. Aplee. Br. 34. We have stated that
“‘disturbing procedural irregularities’ can satisfy the requirements of a pretext
claim.” Garrett v. Hewlett-Packard Co., 305 F.3d 1210, 1220 (10th Cir. 2002)
(quoting Mohammed v. Callaway, 698 F.2d 395, 399 (10th Cir. 1983)). But “[t]he
mere fact that an employer failed to follow its own internal procedures does not
necessarily suggest that the employer was motivated by illegal discriminatory intent
or that the substantive reasons given by the employer for its employment decision
were pretextual.” Randle v. City of Aurora, 69 F.3d 441, 454 (10th Cir. 1995). The
question is whether the jury could conclude that the procedural irregularities were
somehow related to the decision-maker’s discriminatory purpose. See id. at 454 n.20
24
(“[P]rocedural irregularities can suggest the existence of illegal
discrimination . . . where the disregarded procedures directly and uniquely
disadvantaged a minority employee.”).
CCS contends we’ve previously held that more serious procedural
irregularities than Thompson’s error here weren’t evidence of pretext. But only one
of the four cases that CCS points to actually binds us. See 10th Cir. R. 32.1(A)
(explaining that unpublished decisions are not precedential). And regardless, CCS
overstates our conclusions in all four. In three of them, we simply didn’t find any
irregularity—either because the allegedly violated policy didn’t exist or because it
wasn’t actually violated. See Robinson v. St. John Med. Ctr., Inc., 645 F. App’x 644,
649–50 (10th Cir. 2016) (unpublished) (finding procedures followed); Cooper v.
Wal-Mart Stores, Inc., 296 F. App’x 686, 696 (10th Cir. 2008) (unpublished) (finding
no policy); Riggs, 497 F.3d at 1119 (finding no policy). In the fourth case, we didn’t
resolve whether the procedural irregularity was evidence of pretext because we
determined that even if it were, it would be insufficient on its own. See Doke v. PPG
Indus., 118 F. App’x 366, 370 (10th Cir. 2004) (unpublished).
But here, Fassbender argues that Thompson’s failure to attach the narrative
allowed CCS to change its explanation for firing Fassbender. We agree that a jury
could conclude this. Thompson’s failure to attach a narrative increased her flexibility
to change her justification for firing Fassbender if the circumstances warranted. And
as discussed above, CCS’ explanation for Fassbender’s termination has indeed been
inconsistent. Had Thompson attached a narrative, CCS would have had difficulty
25
adjusting the reason Thompson gave. CCS answers Fassbender’s argument by
pointing out that Thompson attached an incident report that Fassbender wrote, which
it says suffices as a narrative. But this report only recounts the facts of the incident; it
doesn’t include any justification for the termination or an explanation of why
Fassbender’s conduct ran afoul of CCS policy.
To summarize: We conclude that (1) Thompson’s comments, (2) CCS’ shifting
explanations for terminating Fassbender, (3) Fassbender’s proper handling of the
second inmate note, and (4) Thompson’s failure to attach a narrative to Fassbender’s
termination request could all be circumstantial evidence of pretext.3 A rational jury
could conclude that the totality of this evidence shows that CCS’ proffered reason for
terminating Fassbender is too “weak, implausible, inconsistent, incoherent, or
contradictory” to believe. Metzler v. Fed. Home Loan Bank of Topeka, 464 F.3d
1164, 1179 (10th Cir. 2006). Indeed, when one draws all reasonable inferences in
Fassbender’s favor, a coherent narrative emerges in which Thompson used the note
incident as an excuse to terminate Fassbender. This isn’t the only reasonable
explanation; CCS certainly offers its own plausible counter-narrative. But it is not
our role at the summary-judgment stage to choose between two reasonable
3
Fassbender also points to additional evidence that she asserts could lead a
jury to disbelieve CCS’ proffered reason for Fassbender’s termination:
(1) Thompson’s failure to seek written approval to suspend Fassbender;
(2) Thompson’s failure to timely obtain Philpott’s approval to terminate Fassbender;
(3) CCS’ failure to give Fassbender a copy of the fraternization policy; and
(4) inconsistencies between the fraternization policy in the human resources manual
and the employee handbook. Because we conclude that a jury could find pretext
without considering this additional evidence, we don’t address it here.
26
explanations. Such is the jury’s province. And we believe this case could benefit
greatly from a jury’s discerning attention.
We therefore reverse the district court’s order granting summary judgment on
Fassbender’s pregnancy-discrimination claim. We emphasize that we have come to
this conclusion by considering the particular evidence at hand in its entirety. We
offer no opinion on whether any one piece of evidence Fassbender has presented
would support a reasonable inference of pretext on its own.
II. Retaliation
Lastly, we address Fassbender’s retaliation claim. Along with discrimination
based on pregnancy and other protected categories, Title VII forbids employers from
retaliating against employees for opposing any activity that is unlawful under Title
VII. See § 2000e-3(a). On summary judgment, we review retaliation claims based on
circumstantial evidence under the same McDonnell Douglas burden-shifting
framework. Stover v. Martinez, 382 F.3d 1064, 1070 (10th Cir. 2004).
“To state a prima facie case of retaliation, [Fassbender] must demonstrate
that[] (1) she engaged in protected opposition to discrimination; (2) [CCS] took an
adverse employment action against her; and (3) there exists a causal connection
between the protected activity and the adverse action.” Id. at 1071. To show she
engaged in protected activity, Fassbender doesn’t need to show that she reported an
actual Title VII violation; rather, she must only show “a reasonable good-faith belief
that” she was opposing discrimination. Hertz v. Luzenac Am., Inc., 370 F.3d 1014,
1015–16 (10th Cir. 2004).
27
The only aspect of Fassbender’s prima facie case that the parties dispute here
is whether Fassbender engaged in protected activity. Fassbender argues that by
reporting the inmate’s note, she was reporting sexual harassment, and CCS
terminated her as retaliation. The question is thus whether Fassbender honestly and
reasonably believed that she was reporting discrimination when she reported the
inmate’s note.
Title VII prohibits sexual harassment to the extent that the harassment creates
a hostile work environment. See Kramer v. Wasatch Cty. Sherriff’s Office, 743 F.3d
726, 743–44 (10th Cir. 2014). This happens “when ‘the workplace is permeated with
discriminatory intimidation, ridicule, and insult, that is sufficiently severe or
pervasive to alter the conditions of the victim’s employment and create an abusive
working environment.’” Morris v. City of Colo. Springs, 666 F.3d 654, 664 (10th Cir.
2012) (quoting Hall v. U.S. Dep’t of Labor, 476 F.3d 847, 851 (10th Cir. 2007)); see
also Clark Cty. Sch. Dist. v. Breeden, 532 U.S. 268, 271 (2001) (“[I]solated incidents
(unless extremely serious) will not amount to discriminatory changes in the ‘terms
and conditions of employment.’” (quoting Faragher v. City of Boca Raton, 524 U.S.
775, 788 (1998))).
The district court concluded—and CCS argues on appeal—that the inmate’s
first note didn’t meet the high bar needed to “alter the conditions of [Fassbender’s]
employment” and that Fassbender couldn’t reasonably believe otherwise. Hall, 476
F.3d at 851. We agree and conclude that no reasonable jury could believe that CCS
terminated Fassbender in retaliation for opposing unlawful sexual harassment.
28
Conclusion
Although we agree with the district court that Fassbender doesn’t present
direct evidence of discrimination, we nevertheless conclude that a reasonable jury
could believe that CCS’ explanation—that it terminated Fassbender for removing the
note from the Detention Center—was a pretext for pregnancy discrimination.
Accordingly, we reverse the portion of the district court’s order granting summary
judgment to CCS on Fassbender’s pregnancy-discrimination claim, and we remand
for further proceedings on this claim. But we also conclude that no reasonable jury
could believe that CCS terminated Fassbender in retaliation for reporting sexual
harassment. Consequently, we affirm the portion of the district court’s order granting
summary judgment to CCS on Fassbender’s retaliation claim.
29