Beito v. Westwood Place, Inc.

DEANNE G. BEITO, Plaintiff, v. WESTWOOD PLACE, INC., Defendant.

Civil No. 13-555 (JRT/JSM)

UNITED STATES DISTRICT COURT DISTRICT OF MINNESOTA

Dated: July 8, 2014

MEMORANDUM OPINION

AND ORDER DENYING

DEFENDANT'S MOTION FOR

SUMMARY JUDGMENT

Matthew H. Morgan and Brock J. Specht, NICHOLS KASTER, PLLP, 80 South Eighth Street, Suite 4600, Minneapolis, MN 55402, for plaintiff.

Amy C. Taber, BARNES & THORNBURG LLP, 225 South Sixth Street, Suite 2800, Minneapolis, MN 55402, for defendant.

Plaintiff Deanne Beito brings this action against her former employer Westwood Place, Inc. ("Westwood") alleging that Westwood threatened to discharge and did discharge her for seeking workers' compensation benefits in violation of Minn. Stat. § 176.82, subd. 1. Beito also alleges that Westwood discriminated against her on the basis of her age in violation of the Age Discrimination in Employment Act ("ADEA"), 29 U.S.C. §§ 621, et seq., and the Minnesota Human Rights Act ("MHRA"), Minn. Stat. §§ 363A.01, et seq. Westwood moves for summary judgment on all of Beito's claims. Because material issues of fact remain as to whether Westwood threatened to terminate Beito in a manner that caused her to cease seeking workers' compensation benefits, whether Westwood terminated Beito in retaliation for filing a workers' compensationclaim, and whether age was a determinative factor in her termination, the Court will deny Westwood's motion in its entirety.

BACKGROUND

I. WESTWOOD'S OPERATIONS

Westwood is a licensed assisted living facility in Watertown, Minnesota. (Third Decl. of Cristina Parra, Ex. 22 (Dep. of Michael J. Gorra ("M. Gorra Dep.") 27:23-28:7), Jan. 13, 2014, Docket No. 39.) Westwood offers a broad array of services to its senior residents including meals, room and board, housekeeping, medical assistance, nursing services, and assistance with daily living tasks. (Third Parra Decl., Exs. 20-21 (Dep. of Deanne Beito ("Beito Dep.") 58:21-59:5).)¹

Michael Gorra ("Mike") is the owner and president of Westwood, and his son, Richard Gorra ("Rick") is the vice president. (M. Gorra Dep. 10:17-19; Third Parra Decl., Ex. 23 (Dep. of Richard Gorra ("R. Gorra Dep.") 23:22-24).) Mike is responsible for maintenance of Westwood's building and is typically present at the facility at least once per week. (M. Gorra Dep. 75:8-17, 82:2-14; R. Gorra Dep. 24:10-12.) Rick works in Westwood's main office and is responsible for maintaining insurance, paying bills, collecting checks, and doing minor maintenance. (R. Gorra Dep. 22:23-23:21.) Rick is typically present at the facility once per week. (Id. 23:11-13, 24:4-9.) The Gorras'primary function is to "oversee that everything goes smoothly" at Westwood. (Id. 23:25-24:7.)

II. BEITO'S MANAGER POSITION

Beito was hired as a floor aide for Westwood in 1988 when she was forty-six years old. (Beito Dep. 14:14-15:6, 20:21-23.) One year later, Mike promoted her to the position of assistant manager. (Id. 15:22-16:6.) Six months later, Mike promoted Beito into the manager position that she held until her termination on July 23, 2012. (Id. 18:15-21, 19:21-20:20.) During the course of her employment, Beito regularly received year-end bonuses, including a bonus in 2011. (M. Gorra Dep. 92:21-94:1.)

Beito's duties as manager encompassed supervising nearly all day-to-day operations at Westwood. (Beito Dep. 21:8-15.) Among other duties, Beito hired, trained, supervised, disciplined, and fired employees; oversaw payroll and employee leave; wrote and implemented policies and procedures for Westwood; oversaw compliance with applicable state and local regulations for assisted living facilities; oversaw building operations and maintenance; collected rent from residents and handled billing for services; addressed resident complaints; gave tours to prospective residents and marketed the facility; and acted as a liaison between Westwood and outside care and service providers. (Id.; Third Parra Decl., Exs. 1-2.)

Because Beito's duties and her ability to adequately perform them form a critical part of the present motion, this Order briefly recounts here the duties and responsibilities of other employees that overlapped to some extent with Beito's described managerial responsibilities. Westwood has approximately thirty employees that were under Beito'ssupervision. (R. Gorra Dep. 55:17-56:3; Beito Dep. 22:17-23; see also Third Parra Decl., Ex. 1 at 2.)² Westwood employs a bookkeeper who is responsible for recording and depositing resident rent, managing payroll, and maintaining a list of overdue accounts that she discusses with the manager or caretakers. (R. Gorra Dep. 30:15-31:15.) Rick testified that the bookkeeper would discuss overdue accounts with him approximately once each month. (Id. 28:2-29:15.) Additionally, during the last nine years of Beito's employment, Westwood employed Donna Lehrke as a registered nurse. (Aff. of Donna Lehrke ¶¶ 2-3, Jan. 13, 2014, Docket No. 38.)³ Lehrke was responsible for, among othertasks, "checking doctors' orders, giving medications to residents, updating resident charts, visiting and addressing concerns with residents and family of residents and supervising staff." (Id. ¶ 6.)

III. BETA-TESTING OF LIFESTYLE LEDGER

In July 2011, Westwood entered into a Beta Site Testing Agreement ("the Agreement") with Joyful, Inc., owned by Mike's then-girlfriend, now-wife, Joy Melby, to implement and test a software program designed by Melby.⁴ (Third Parra Decl., Ex. 6; M. Gorra Dep. 151:11-18.) The internet-based "Lifestyle Ledger" program was intended to make administrative paperwork more efficient in order to allow nurses to spend more time with residents and therefore "assist in bringing better harmony" to assisted living facilities, creating "a happier client, more efficient staff, [and] maybe happier staff because [they] have a better communication tool." (Third Parra Decl., Ex. 24 (Dep. of Joy Melby ("Melby Dep.") 49:6-24, 51:21-52:10).)

The primary purpose of the beta testing was "to obtain feedback on Joyful, Inc., Lifestyle Ledger application features, performance and functionality, and to identify any defects or inconsistencies in functionality." (Third Parra Decl., Ex. 6 at 2.) The Agreement advised Westwood "to safeguard important data, to use caution and not to rely in any way on the correct functioning or performance of the software and/or accompanying materials." (Id.) Westwood further agreed not to "rely exclusively on the software for any reason," and Joyful, Inc. waived all liability arising out of the beta testing. (Id., Ex. 6 at 3.) The beta testing period was originally intended to last ninety days but was extended several times. (Id., Ex. 6 at 2.)

Early in the beta testing, Melby met with Westwood staff and informed them that all resident records were going to be loaded into Lifestyle Ledger, and updated using that system. (Beito Dep. 78:1-18.) Melby then spent several hours showing Beito how to load resident information into the program. (Melby Dep. 61:6-16; Beito Dep. 82:2-5.) The first step involved uploading the residents' demographic information. (Melby Dep. 61:6-16.) That process was extremely slow due to Westwood's problematic internet connection, and set back the beta testing by approximately a month. (Id. 61:17-22.)

A. Issues with Resident Service Plans

Upon a resident's admission to Westwood, Westwood's nurse creates a personalized service plan for that resident by compiling the nurse's own service assessment, any doctors' orders, and any requests from the resident to determine what services the resident will receive. (Beito Dep. 45:8-16, 111:21-112:9, 145:14-17; Melby Dep. 24:15-18, 25:9-18; M. Gorra Dep. 19:5-14.) Service plans are updated as residents'needs change throughout the course of their stay. (Beito Dep. 113:1-11; Melby Dep. 24:19-25:2.) Although Westwood's nurse creates the assessment, Beito, as manager, was responsible for ensuring that each service plan is accurate. (Beito Dep. 112:10-19, 156:23-157:1.)

During the beta testing, residents' doctors' orders were loaded into Lifestyle Ledger. (Melby Dep. 62:8-13.) When reviewing some of these files, Melby noticed that there were discrepancies between individual residents' doctors' orders and their service plans. (Id. 62:13-63:1.) For example, one resident's doctor ordered that the resident's blood pressure be checked once a week, but that test was not included on his service plan. (Id. 62:15-18.) Melby brought these discrepancies to Beito's and Lehrke's attention. (Id. 63:18-22.) Melby then determined that Beito and Lehrke should assume responsibility of loading the doctors' orders into Lifestyle Ledger so they could double check them against the residents' service plans as they were loaded. (Id. 67:8-17.)

B. Issues with Fee Structure

Sometime in late August or early September 2011, while Melby was loading information into Lifestyle Ledger she discovered that Westwood was not billing for additional services provided to residents, and was instead charging every resident a base fee. (Melby Dep. 72:7-23.) She immediately brought this issue to Mike's attention, who then spoke with Beito. (Id. 72:20-73:19; Beito Dep. 61:10-62:2.)

The service plans that are prepared for residents also document the method by which residents will pay Westwood. (Beito Dep. 45:12-15; M. Gorra Dep. 19:8-14.) Some residents qualify for financial assistance from the county, state, and/or federalgovernment ("assisted pay") and others pay all costs associated with living at Westwood personally ("private pay"). (Melby Dep. 22:23-24:24.) All assisted pay residents are assigned a case manager to review the service plan, file it with the state, and obtain approval for the necessary services and associated charges. (Id. 23:19-24:15.)

Prior to 2006, all Westwood residents were billed a flat fee, known as the base fee, that included all available services offered by Westwood. (M. Gorra Dep. 20:16-22; Beito Dep. 61:12-13, 63:17-21.) In 2006, the State of Minnesota...