Circumstantial Case of Pregnancy Discrimination Enough to See a Jury

05-24-2018

The Tenth Circuit Court of Appeals recently ruled that a woman fired while pregnant had enough circumstantial evidence to take her case before a jury.
 
Alena Fassbender worked as a prison medication aide for Correct Care Solutions (“CCS”). Her supervisor overheard Ms. Fassbender discussing her pregnancy and commented: “What, you’re pregnant too?” This supervisor was also heard commenting “I have too many pregnant workers. I don’t know what I am going to do with all of them.” Several of Ms. Fassbender’s co-workers were also pregnant. A few weeks later, Ms. Fassbender brought a note home from an inmate. The inmate knew personal details about her and asked for a sexual relationship. Ms. Fassbender brought the note to officials the next day. CCS did not learn of the incident from her for another day, which she was told was a violation of procedure. After she received another note from an inmate and immediately reported it, she was fired without a given reason. She had to ask HR for the basis for her termination. The provided reasons were based on her not reporting the first note immediately to CCS.
 
The circuit court reviewed the case. It concluded that the pregnancy related statements were not direct evidence of discrimination. The biased comments were not made in relation to the termination decision. However, there was sufficient circumstantial evidence that Ms. Fassbender’s pregnancy and maternity leave may have been considered an inconvenience to the supervisor and that she terminated Ms. Fassbender to ease the burden of it. Evidence also supported a finding that the reasons given for termination could have been pretextual. CCS’s explanation for her firing had shifted throughout the process and her proper reporting of the second note could reflect that she would not make the same mistake again. Thus, the court returned the case to a trial court where a jury could decide the matter.