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Fassbender v. Correct Care Solutions, LLC

United States District Court, D. Kansas

February 9, 2017

Alena Fassbender, Plaintiff,
Correct Care Solutions, LLC, Defendant.



         Plaintiff Alena Fassbender filed this lawsuit against her former employer asserting claims of pregnancy discrimination and retaliation pursuant to Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e et seq. This matter is presently before the court on defendant's motion for summary judgment on all claims (doc. 49). As explained below, the motion is granted.

         I. Facts

         The following facts are uncontroverted, stipulated in the pretrial order, or related in the light most favorable to plaintiff as the nonmoving party. Defendant Correct Care Solutions, LLC (“CCS”) contracts with governmental entities throughout the country to provide comprehensive healthcare services to incarcerated individuals. CCS employs approximately 11, 000 people, who serve mostly in medical and administrative roles in jails, prisons and residential treatment facilities. The facility involved in this case is the Wyandotte County Detention Center located in Kansas City, Kansas. The detention center houses male and female adult offenders who are awaiting trial or sentencing or who have been sentenced to serve their time at the detention center.

         Plaintiff Alena Fassbender was employed by CCS and worked at the detention center in Kansas City, Kansas. Plaintiff was hired in November 2014 as a Certified Medication Aide (“CMA”) on an “as needed” basis. As a CMA, plaintiff was responsible for distributing medications to inmate-patients at the detention center. At the time plaintiff was hired, she acknowledged in writing that she had read and received defendant's Fraternization Policy. Generally speaking, that policy precludes undue familiarity between CCS employees and inmate-patients. Pertinent to this case, the policy expressly precludes employees from engaging in personal conversations with inmate-patients and precludes an employee from taking out of the facility any correspondence from an inmate-patient.

         On March 22, 2015, Kay Thompson offered plaintiff a full-time CMA position and plaintiff accepted the position. At all times relevant to the lawsuit, plaintiff was supervised by Ms. Thompson. Plaintiff was pregnant at the time she accepted the full-time position. Ms. Thompson was not aware of plaintiff's pregnancy at the time she offered plaintiff the full-time position. Two other CCS employees working at the detention center were also pregnant at that time.[1] Shortly thereafter, in early April, Ms. Thompson entered the break room while plaintiff was discussing her pregnancy with other employees. According to plaintiff, Ms. Thompson “had not known until that point” that plaintiff was pregnant and Ms. Thompson said to her, “What, you're pregnant too?” A few days later, plaintiff heard another employee mention to Ms. Thompson that yet another employee was trying to become pregnant. According to plaintiff, Ms. Thompson said “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.” In addition, one of plaintiff's coworkers, Lori Lentz-Theis, avers that she overheard a conversation between Ms. Thompson and an administrative assistant during which the assistant (who was also pregnant and discussing the need to take time off for pregnancy-related medical appointments) asked Ms. Thompson “what she was going to do when [plaintiff] needed to go to doctors' appointments because of her pregnancy.” According to Ms. Lentz-Theis, Ms. Thompson responded, “I have too many pregnant workers, I don't know what I am going to do with all of them.” Ms. Lentz-Theis avers that Ms. Thompson sounded “very angry and frustrated compared to how she usually sounds.”

         On April 30, 2015, plaintiff was passing medications out to inmate-patients in the detention center around 10:15am when an inmate-patient approached plaintiff, carrying a handwritten note under his arm. The inmate-patient dropped the note on plaintiff's medication cart. Plaintiff pushed the note to the side of her cart, under a notebook. According to plaintiff, she pushed the note aside because she was “very busy” at the time. After she finished passing medications to inmate-patients, plaintiff placed the note on a shelf in the medication room with other papers. Her shift ended at 3:30pm. Plaintiff was in contact with approximately six detention center officials that day but she did not turn the note into any of those officials or her supervisor and she did not read the note before she left work. Rather, at the conclusion of her shift, plaintiff placed the note in her personal bag and took the note home with her. The note, which plaintiff read at home, stated as follows:

What up sexy lady how was your night at work good I hope not tireing [sic] cause you had 3 days off and I wasn't able to see your beautiful face, shit 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 [sic] 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 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 and How old are you? I'm 31. If you write back write as (LaLa) that is your nick name from me to you!

         Plaintiff testified that she started “freaking out” when she read the note because the note was “sexually suggestive” and indicated the inmate's desire to have a relationship with plaintiff. She further testified that she did not know how the inmate knew about her son; that she never told the inmate that they could be friends; that the inmate had never called her “LaLa” before; and that she had never used the nickname “LaLa.”

         Although plaintiff was not scheduled to work the following day, she went to the detention center sometime after 3:30pm and turned the note into officials at the detention center.[2] She told various detention center officials that the note was “extremely inappropriate” and made her feel uncomfortable. She also told staff members that although the note suggested that she and the inmate had a personal relationship, no such relationship existed. According to plaintiff, the officials at the detention center told her “not to worry about the situation” and that they would contact Ms. Thompson. That same day, Friday, May 1, 2015, Lieutenant Tracy McCullough, an official at the detention center, telephoned Ms. Thompson to advise her that one of Ms. Thompson's employees had accepted a note from an inmate, taken the note out of the facility, and then had returned to the facility more than 24 hours later to speak to detention center staff about the note. During that conversation, Lt. McCullough expressed her displeasure that plaintiff had removed a note from the facility and had circumvented Ms. Thompson and come directly to detention center staff during non-working hours.[3] Ms. Thompson then called her supervisor, Lynn Philpott, who was CCS's regional vice president. Ms. Philpott instructed Ms. Thompson to call CCS's human resources department. Ms. Thompson testified that Ms. Philpott also instructed Ms. Thompson that CCS “needed to do whatever it took” for its client, Wyandotte County Detention Center, to feel comfortable with the situation.[4] At that point, Ms. Thompson contacted Pat Rice in CCS's human resources department. Ms. Rice instructed Ms. Thompson to conduct an investigation and to obtain a statement from plaintiff regarding the incident.

         That night, Ms. Thompson called plaintiff and had a brief conversation with her. Plaintiff testified that Ms. Thompson yelled at plaintiff for turning the note into the detention center staff instead of contacting Ms. Thompson first. Plaintiff apologized to Ms. Thompson and explained that she thought the note should be taken to the center's staff because the staff is typically responsible for punishing the inmates.

         On Saturday, May 2, 2015, plaintiff arrived at work for her regular shift. At that time, Ms. Thompson issued plaintiff a final written warning and indicated that the investigation into her conduct was ongoing. Ms. Thompson advised plaintiff that she “had not followed the chain of command” and had taken the note to the facility staff rather than taking the note directly to Ms. Thompson. The final written warning indicates that the discipline was based on plaintiff's failure to report a serious issue to her immediate supervisor and her failure to “follow proper policy and procedure as outlined in the employee handbook and instructed at orientation.” During this exchange, Ms. Thompson also referenced the personal nature of the information contained in the note.

         Meanwhile, Lieutenant Colonel Jeffrey Fewell, the Administrator of the detention center, had been informed on May 1, 2015 that a CCS employee had removed a note given to her by an inmate. Over the weekend, Lt. Col. Fewell had a telephone conversation with Ms. Thompson about the incident. He advised Ms. Thompson that he was “very unhappy” that a member of her staff had violated CCS's and the center's non-fraternization policies by removing from the detention center something given to her by an inmate. He also expressed his concern that the note contained personal information regarding plaintiff which the inmate should not have known (that plaintiff was pregnant and had another young child at home) and indicated that any conversations between plaintiff and the inmate that included such personal information would violate both entities' non-fraternization policies. Lt. Col. Fewell told Ms. Thompson that plaintiff's decision to remove the note from the facility, as well as the contents of the note, “raised red flags” for him and that plaintiff's conduct “needed to be taken very seriously.” He advised Ms. Thompson that it was his duty to protect the inmates and staff at the detention center and that he was “not willing” to take any risk on plaintiff. Finally, he cautioned Ms. Thompson that if anything improper happened in the future between plaintiff and the inmate, both he and Ms. Thompson “would likely both be heavily scrutinized and blamed for not taking aggressive enough measures” with respect to the incident. Lt. Col. Fewell and Ms. Thompson had a similar conversation on Monday, May 4, 2015. It is undisputed, however, that Lt. Col. Fewell did not tell Ms. Thompson to terminate plaintiff's employment.

         On Monday, May 4, 2015, plaintiff gave a written statement to Ms. Thompson regarding the incident. Ms. Thompson then suspended plaintiff pending the continued investigation into the incident. That same day, Ms. Thompson had multiple discussions with CCS's Employee Relations Specialist Julie Lindsey regarding the incident and they agreed that termination was the probable outcome, though the decision to terminate plaintiff's employment was not made until the following day, on May 5, 2015, when Ms. Thompson submitted a written Request for Termination. CCS terminated plaintiff's employment on May 6, 2016.

         Additional facts will be provided as they relate to the specific arguments raised by the parties in their submissions.

         II. Summary Judgment Standard

         “Summary judgment is appropriate if the pleadings, depositions, other discovery materials, and affidavits demonstrate the absence of a genuine issue of material fact and that the moving party is entitled to judgment as a matter of law.” Water Pik, Inc. v. Med-Systems, Inc., 726 F.3d 1136, 1143 (10th Cir. 2013) (quotation omitted); see Fed. R. Civ. P. 56(a). A factual issue is genuine “if the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Water Pik, Inc., 726 F.3d at 1143 (quotation omitted). “The nonmoving party is entitled to all reasonable inferences from the record; but if the nonmovant bears the burden of persuasion on a claim at trial, summary judgment may be warranted if the movant points out a lack of evidence to support an essential element of that claim and the nonmovant cannot identify specific facts that would create a genuine issue.” Id. at 1143-44.

         III. Pregnancy Discrimination Claim

         In the pretrial order, plaintiff asserts that defendant terminated her employment on the basis of her pregnancy. In its motion for summary judgment, defendant, using the burden-shifting framework developed in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973), asserts that plaintiff cannot establish a prima facie case of discrimination and cannot show that defendant's articulated reason for terminating plaintiff's employment is pretextual. As an initial matter, plaintiff contends that she has come forward with direct evidence of discrimination, thus obviating the need for the McDonnell Douglas analysis. See Trans World Airlines, Inc. v. Thurston, 469 U.S. 111, 121 (1985) (holding that the McDonnell Douglas framework does not apply once plaintiff has presented direct evidence of discrimination). Specifically, plaintiff points to the following evidence as “direct” evidence of discrimination:

When Ms. Thompson found out that plaintiff was pregnant, she said to plaintiff, “Oh, you're pregnant too?”
A few days later, Ms. Thompson found out that another employee was trying to become pregnant and stated “Are you kidding me? I don't know what I'm going to do ...

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