Tenth Circuit: Changing Termination Reasons Held as Pretext for Employment Discrimination


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May 15, 2018


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The Tenth Circuit Court’s decision in Fassbender v. Correct Care Sols., LLC, reminds employers of the importance of weighing termination decisions with care.  In Fassbender, an employer’s decision to terminate a pregnant employee was determined to be a pretext for discrimination, due in part to the employer’s inconsistent reasoning for the termination.

Alena Fassbender, a medication aide working at a detention center, became pregnant around the same time as two other employees.  Her supervisor made negative comments about the three employees’ pregnancies coinciding.  During the course of her duties, an inmate slipped a note on Fassbender’s medication cart.  Fassbender initially took the note home, but reported the note to detention center official after 24 hours.  Fassbender was assured that she acted correctly in reporting the incident to the detention center, but was also told to immediately report similar incidents in the future.  When a different inmate gave her a note on the following day, Fassbender immediately gave the note to a guard and reported the incident to her supervisor.

Fassbender was terminated on the following day.  The company’s HR department originally stated that Fassbender was terminated for failing to report the note timely and taking the first note home.  However, when Fassbender filed an EEOC charge alleging pregnancy discrimination, the company revised its stance, stating that Fassbender had been terminated solely for taking correspondence from an inmate home.

In determining whether or not the company’s reason for terminating Fassbender was a pretext for determination, the circuit court focused on why the employer changed its reasons for termination.  Although the employer argued that the basis for termination was related to the same note-passing incident, the circuit court stated that the combination of (1) the supervisor’s negative comments about pregnant employees, (2) the shifting reasons for terminating Fassbender, and (3) Fassbender’s compliant handling of the second note were circumstantial evidence of pretext.

Employers should carefully review adverse employment decisions to ensure that disciplinary actions are legitimate and reasonable under the circumstances, and that such decisions are documented appropriately.

Action Items

  1. Review disciplinary procedures and documentation to ensure consistent handling of adverse employment decisions.
  2. Subscribers can call our HR On-Call Hotline at (888) 378-2456 for further assistance.

Disclaimer: This document is designed to provide general information and guidance concerning employment-related issues. It is presented with the understanding that ManagEase is not engaged in rendering any legal opinions. If a legal opinion is needed, please contact the services of your own legal adviser.

© 2018 ManagEase

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