Beito v. Westwood Place, Inc.

Filing 46

MEMORANDUM OPINION AND ORDER denying defendant's 29 Motion for Summary Judgment (Written Opinion). Signed by Judge John R. Tunheim on July 8, 2014. (DML)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA
DEANNE G. BEITO,

Civil No. 13-555 (JRT/JSM)
Plaintiff,
MEMORANDUM OPINION
AND ORDER DENYING
DEFENDANT’S MOTION FOR
SUMMARY JUDGMENT

v.
WESTWOOD PLACE, INC.,
Defendant.

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’ compensation

27

claim, 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’

1

Beito’s first deposition was taken on July 31, 2013, and appears as Exhibit 20 to the
Third Declaration of Cristina Parra. A second deposition was taken on October 15, 2013, and
appears as Exhibit 21 to the Third Parra Declaration. The two depositions are consecutively
paginated and will be referred to collectively in this Order as “Beito Dep.”
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primary function is to “oversee that everything goes smoothly” at Westwood. (Id. 23:2524:7.)

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. 18:1521, 19:21-20:20.) During the course of her employment, Beito regularly received yearend 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’s
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supervision. (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 other
2

With the exception of depositions, all references to page numbers of exhibits refer to the
CMECF pagination.
3

Westwood appears to object to the admission of the Lehrke Affidavit. In its reply brief,
Westwood argues that “[p]ortions of Lehrke’s affidavit make improper statements and fail to
satisfy the requirements of Rule 56(c)(4). For brevity purposes, this affidavit offers inadmissible
hearsay, opinion and conclusory statements. Consistent with the dictates of Rule 56, the Court
should not consider those portions of Plaintiff’s memorandum relying on this affidavit.” (Reply
at 2, Jan 23, 2014, Docket No. 40.) Westwood identifies no specific portion of the affidavit that
it believes offers inadmissible evidence, nor has it explained how any opinion or conclusory
statements contained in the affidavit render it inadmissible under Federal Rule of Civil Procedure
56. See Fed. R. Civ. P. 56(c)(4) (“An affidavit or declaration used to support or oppose a motion
must be made on personal knowledge, set out facts that would be admissible in evidence, and
show that the affiant or declarant is competent to testify on the matters stated.”); Fed. R. Evid.
701(a) (providing that a lay witness may testify in the form of an opinion if the opinion is
“rationally based on the witness’s perception”). In her affidavit, Lehrke describes her position
and the duties of her employment at Westwood and offers testimony as to her opinion about
Beito’s job performance, based upon her experience working with Beito for nine years. (Lehrke
Aff. ¶¶ 2-3, 5-7.) Lehrke also offers testimony about common practices among staff members in
cases of problems (id. ¶¶ 8-11), the frequency with which Beito answered telephone calls while
at work (id. ¶¶ 12-13). billing procedures for assisted pay clients (id. ¶¶ 14-15), her own
experiences using Lifestyle Ledger software (id. ¶¶ 16-22), the typical practices at Westwood
regarding use of a Wanderguard system (id. ¶¶ 23-26, 28), and general practices regarding
resident diets (id. ¶ 27). All of this proffered testimony is based upon Lehrke’s personal
knowledge gained while working at Westwood. Furthermore the testimony offered is not
hearsay, as it does not relate to out of court statements, but instead discusses common practices
and specific experiences Lehrke had while employed at Westwood. See Fed. R. Evid. 801(c)
(defining hearsay as an out-of-court statement offered “to prove the truth of the matter asserted
(Footnote continued on next page.)

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tasks, “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).)

____________________________________
(Footnote continued.)

in the statement”). Although some of the testimony in the Lehrke Affidavit offers opinions (see,
e.g., Lehrke Aff. ¶ 22 (“The computer system still seemed unreliable and I was never sure if the
system would crash or how easily it could be hacked into.”)), this opinion testimony is rationally
based on Lehrke’s personal first-hand knowledge of the Lifestyle Ledger software and the
specific problems she encountered during her use of it and would therefore be admissible.
Because Westwood has not even attempted to identify any portion of the Lehrke Affidavit that is
inadmissible, and the affidavit complies with the requirements of Federal Rule of Civil
Procedure 56(c)(4), the Court considers the evidence offered in the affidavit in resolving the
present motion.
4

From 1997 through 2008 Melby managed an assisted living facility owned by the
Gorras in Northfield, Minnesota. (Third Parra Decl., Ex. 24 at 14:2-10.)

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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’
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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 federal
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government (“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 sent out notices

indicating that it was moving to a customized billing program where assisted living
facilities could bill each assisted pay resident the base rate plus fees for individual
additional services provided to that resident. (M. Gorra Dep. 20:16-22.)5
Between 2000 and 2008, Beito attended three in-person training programs
presented by the Minnesota Department of Human Services and five video conferences
regarding case management and fee-for-service billing practices for assisted pay
residents. (Beito Dep. 59:6-60:13.) The parties disagree about the timeline surrounding
the transition from flat fee billing to fee-for-service billing at Westwood. Beito testified
that she advised Mike several times about the ability to change the method of billing after
2006 from flat fee to a fee-for-service model. (Beito Dep. 61:10-17.) Beito testified that
when she so advised Mike, he indicated that he did not want to change Westwood’s
billing procedures, and she therefore could not change the rates as such a change would

5

Although these regulations did not explicitly affect private pay clients, they did have an
important effect on billing for private pay clients, because the state will not pay a price for
particular services provided to assisted pay clients if the price is higher than the amount charged
to private pay clients. (See M. Gorra Dep. 23:8-22; Melby Dep. 24:7-15.)
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require his approval. (Id.; R. Gorra Dep. 85:15-23.) Mike testified that he became aware
that Beito was still using a flat fee sometime between 2006 and 2010 and was unhappy
that she had not been using a fee-for-service model earlier. (M. Gorra Dep. 21:22-22:6.)

C.

Beito’s Frustrations with Lifestyle Ledger

At some point, Beito expressed her own frustration and that of other Westwood
staff about Lifestyle Ledger to Melby. (Beito Dep. 78:21-79:6.)6 Beito testified that she
had “frustrations with the whole system” because there were problems with the software
and “[t]he system would fail. The equipment wasn’t efficient. There were service
errors.” (Id. 79:21-80:2.) Because of some of these concerns, the Westwood staff
continued to maintain paper charting as backup to the data entered into Lifestyle Ledger.
(Beito Dep. 82:17-25; Lehrke Aff. ¶ 18.) Beito testified that when she expressed these
concerns about Lifestyle Ledger to Melby, Melby
would get upset with me and make statements to me, degrading statements.
She told me that she would have to tell Mike that I was incompetent, and
she questioned my ability learn. . . . She also said you used to be a good
manager, but you’re not anymore. She told me that the younger staff
caught on more quickly.

6

Lehrke also had issues with Lifestyle Ledger. Specifically, Lehrke states in her
affidavit that “[w]hen the new computer system was implemented at Westwood, I found it
unreliable and inefficient” and it would often crash. (Lehrke Aff. ¶¶ 17, 22.) Lehrke was also
wary of the security on the system as she “was able to log-on simply by pressing ‘enter’ without
using [her] password.” (Id. ¶ 21.) Lehrke also indicated that she believed the settings of the
program created the possibility that Westwood staff “would accidentally double-measure a
medication for a resident.” (Id. ¶ 18.) Because Lehrke believed the paper system was safer she
“asked the personal care attendants to use the paper system in addition to the computer system
through the time that [she] left.” (Id.)
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(Beito Dep. 79:4-13.) Melby spoke with Mike about what she perceived to be Beito’s
uncooperative attitude with respect to the beta testing.

(Melby Dep. 67:18-68:25.)

Melby also reported to Mike the alleged errors described above that she found while
loading information into the program. (Id. 69:12-18.)
In response to Melby’s reports, Mike faxed Beito a handwritten memo stating:
8-23-11
Westwood Place
Deanne Beito – Manager
Directive
1.) Assist Joyful, Inc. in loading software into Westwood Computers!
All other managerial duties are secondary until loading is complete
(by Aug. 31, 2011).
2.) Secondary Directive—develop cost list (with assistance of nurse) for
service to be offered, and now offered, by Westwood!
Effective immediately!!
M.J. Gorra
Owner
(Second Aff. of Amy Taber, Ex. K at 59, Dec. 23, 2013, Docket No. 35.)

D.

Beito’s Response to the Directives

In order to switch to fee-for-service billing, Westwood was required to negotiate
with Carver County (“the County”) and obtain approval of the reimbursement rate for
each additional service not included in the base fee. (Beito Dep. 60:16-61:7, 136:14-21.)
Although Beito was the liaison between the County and Westwood, she testified that as
owner, Mike needed to be involved in setting the price with the County for the additional
services. (Id. 61:5-17, 137:2-7.)

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In response to the directive from Mike, Beito drafted a letter in September 2011 to
all County case managers to obtain County approval for a proposed change in fee
structure at Westwood. (Beito Dep. 61:18-62:2, 86:10-87:15; Second Taber Aff., Ex. L
at 60.) The letter notified the case managers that Westwood would continue to offer a
base package that included room and board in addition to a number of services and that
“[a]dded fees will be applied for residents whose needs exceed our base service
package.” (Second Taber Aff., Ex. L at 60.) The letter indicated that the new fee policy
was effective as of September 15, 2011, but that all changes in payment would not be due
until November 1, 2011. (Id.) Additionally, as directed by Mike, Beito developed a cost
list for additional services not included in the base fee. (Beito Dep. 84:18-85:24.)
Beito also drafted a letter to private pay residents reflecting the same change in fee
structure, but Melby told her to delay notifying the private pay residents until
negotiations with the County regarding fees for additional services were finalized. (Id.
90:15-91:23; Melby Dep. 84:21-85:9; Second Taber Aff., Ex. M at 61.) Private pay
residents were eventually notified in March 2012 that the fee-for-service billing structure
would take effect on April 1, 2012. (Melby Dep. 84:21-85:15; Beito Dep. 60:16-22.)
Melby made two trips to the County in September or October to present it with the
base rate and new fee-for-service billing information that had been communicated in the
September 2011 letter. (Melby Dep. 84:6-20.) Additionally, Beito attempted to contact
the County on several occasions, but when they finally responded, the County
representative expressed confusion about the pricing assessments proposed by
Westwood. (Beito Dep. 62:4-63:1, 137:10-15.) Melby then contacted the County in May
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2012 to notify it that she was the new contact person at Westwood. (Third Parra Decl.,
Ex. 8.) The County ultimately began paying Westwood for assisted pay residents based
on a fee-for-service basis in the late summer or early fall of 2012, after Beito’s
termination. (Melby Dep. 143:2-7.)

E.

Lifestyle Ledger Usage Improvements

Despite the difficulties with Lifestyle Ledger, in late spring or early summer of
2012 the staff at Westwood began using the system to enter orders into the computer.
(Lehrke Aff. ¶ 22.) On June 1, 2012, Melby wrote to staff members “Congratulations on
a huge improvement in documenting Services and Medications/Treatments. . . . Keep up
the great documenting in June.” (Third Parra Decl., Ex. 7 at 2.) A July 2012 note stated
“Westwood Staff, Thank you for recording the vitals on residents – it was 100%
completed. I also see July is off to a great start with many vitals already recorded. The
recording of medications and treatments for June was a huge improvement from May. . . .
Overall great job – looking forward to even a better July.” (Id.)

IV.

INJURY AND WORKERS’ COMPENSATION CLAIM
On the afternoon of February 14, 2012, Beito went to meet with a nurse in

Westwood’s medication room. (Beito Dep. 201:21-202:1.) Beito was leaning on the
edge of a desk when there was a knock on the door. (Id. 202:2-4.) Beito pushed off the
desk chair in front of her as she went to answer the door and fell. (Id. 202:6-12.) Beito
testified that there was a hole in the floor, but because the accident happened quickly, she
was not entirely sure what happened – whether she tripped on the hole or if the desk chair
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got stuck. (Id. 202:7-12, 203:14-17.) As she fell, Beito used her left hand to break her
fall. (Id. 202:14-16.) After she noticed swelling in her wrist, Beito went to a clinic
where a doctor determined that her wrist was broken, splinted the wrist, and referred
Beito to an orthopedic doctor. (Id. 205:20-25, 206:17-22.)
Beito returned to work that same day and reported the incident to Jack Ewig, a
claims administrator for Westwood’s workers’ compensation insurer, West Bend
Insurance (“West Bend”). (Id. 207:2-14; Third Parra Decl., Ex. 10 at 5.) Beito then
spoke with Mike about her wrist. (Beito Dep. 206:22-25.) When she spoke with Rick
later that day Beito told him that “there was a hole in the floor,” but she had not reported
it to West Bend because she “didn’t want to get anybody in trouble.” (Id. 213:19-25.)
Beito testified that she had previously informed the Gorras about the hole in the floor.
(Id. 203:20-204:3, 214:1-4.)
On February 15, 2012, Beito again spoke with Ewig about the accident. (Third
Parra Decl., Ex. 10 at 5; Second Taber Aff., Ex. O at 64.)7 Ewig spoke with Rick later in
the day and noted that Rick “does not question this claim though he does not know why
Deanne tripped and fell.” (Third Parra Decl., Ex. 10 at 5.) On February 17, Ewig
contacted Rick and told him of West Bend’s plan to deny Beito’s claim. (Id., Ex. 10 at
4.) Rick asked “what about the hole in the floor?” (Id.) Rick explained that he had “sent

7

Westwood produced a transcript of this conversation in connection with the present
motion, and contends that Beito told Ewig that Beito attributed the trip and fall “to her ‘own
clumsiness.’” (Def.’s Mem. in Supp. of Mot. for Summ. J. at 13, Dec. 23, 2013, Docket No. 31.)
But the responses of Beito to Ewig’s questions in the transcript that Westwood cites have been
redacted. (Second Taber Aff., Ex. O at 69.) Accordingly, the Court will not consider these
purported responses in deciding Westwood’s motion for summary judgment.
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a workman over to put some sealant putty in” the hole. (Id.) Ewig told Rick that Beito
had not mentioned a hole in her report of the injury and Rick “expressed
dumbfoundedness that she didn’t tell [Ewig] about it.” (Id.)
On February 20, Ewig received Beito’s Workers’ Compensation Questionnaire.
(Second Taber Aff., Ex. Q at 1-2; Third Parra Decl., Ex. 10 at 4.) In the questionnaire
she again described the incident as a “trip & fall” and did not mention the hole in the
floor. (Second Taber Aff., Ex. Q at 1.) After receiving the questionnaire, Ewig sent
Beito a denial of liability. (Third Parra Decl., Ex. 10 at 4.)
After receiving West Bend’s denial of liability, Beito called Ewig. (Id.) During
the conversation she mentioned the hole, explaining that she had forgotten to inform
Ewig of the hole earlier and that the hole had been filled after her accident. (Id.) Ewig
noted:
At the end of the day, even if there was a hole in the floor, it was not until
now that Deanne contends that it was a proximate cause of her fall. This
“story” was absent in her R/I, questionnaire, and again in today’s initial
telephone conversation. She seems so bent on having the claim deemed
compensable that she is willing to shamelessly fabricate. The most I would
possibly consider doing would be a mediation with a compromise resulting
in a confirmed denial of primary liability, with a closeout of past and future
medical care.
(Id.) Notes from the clinic where Beito went following her injury indicated that when
Beito presented at the clinic she stated that “she was getting off the desk, foot got caught
and she fell forward trying to catch herself.” (Id.) On March 12, Ewig’s notes document
what he interpreted as a “third story” that the wheel of the chair got stuck in the hole and
Beito’s foot caught on the chair causing her to fall. (Id.)

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On March 26, Ewig spoke with Rosenlund – the other nurse that was in the room
at the time of Beito’s accident. (Id., Ex. 10 at 3.) Rosenlund indicated that Beito
“immediately tripped over castered chair leg in front of her which was over a hole in the
floor and fell to the floor.” (Id.) The next day Beito called Ewig for an update on the
status of her claim. (Id.) He indicated that West Bend was denying primary liability but
recommended mediation, which Beito agreed to and scheduled for April 11, 2012. (Id.;
Beito Dep. 252:6-22.)
In early April 2012, Beito spoke with Mike about the denial of liability. (Beito
Dep. 261:16-262:7.) Beito claims that she told Mike she would “appeal” the denial, upon
advice of her son-in-law, and that in response Mike told her that she could be fired for
threatening to “sue” her employer. (Id. 262:2-7, 270:10-23.) Mike testified that he
believed threatening to sue regarding workers’ compensation was a valid reason for
termination because “[i]t just shows disrespect for the ownership.” (M. Gorra Dep.
133:11-23.)
Shortly thereafter, Rick told Beito she should not drag him into court over a
workers’ compensation claim. (Beito Dep. 252:14-22.) Beito became concerned that she
was going to lose her job, so she cancelled the mediation and told Ewig “she just wants to
drop the whole matter.” (Id. 253:21-25; Third Parra Decl., Ex. 10 at 3.) Beito testified
that she did not discuss the claim with the Gorras again.

(Beito Dep. 267:11-17.)

However, Rick testified that he recalled Mike bringing the issue up several times and
stating something to the effect of “God, look it, Deanne’s filing false insurance claims on
us.” (R. Gorra Dep. 142:3-11.) Melby also told Mike that “with the workman’s comp
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claim, falsely submitting that, I said if [Beito] were my employee, I would fire somebody
for falsely submitting a workmen’s comp claim.” (Melby Dep. 174:17-175:8.)

V.

ACCOUNTS AND SAFETY ISSUES
During Beito’s tenure as manager, there were two instances in which resident

accounts were substantially in arrears. (Beito Dep. 115:9.) Beito testified that with
respect to one account that was at one point $22,000 (or approximately 10 months) in
arrears, she was in constant contact with the resident’s family and there was an estate
issue that required resolution before Westwood could be fully paid. (Id. 115:11-20.) The
account had been in arrears at least once before, and the family and Mike had worked out
payment and brought the account up to date. (Id. 116:19-22.) Because of this prior
arrearage which had been paid, Beito testified that she was not concerned with the
account. (Id. 118:7-19.) When the debt became “overly in arrears,” she alerted Mike
about the account in early 2012. (Id. 115:2-17; M. Gorra Dep. 15:18-16:4.)
A second resident account was in arrears of $10,000 before Beito told Rick about
it. (Beito Dep. 117:2-11.) The resident was a private pay client, and her family informed
Beito they were in the 30- to 90-day waiting period of applying for medical assistance.
(Id. 117:7-10.) The account was ultimately referred to collections. (Id. 117:14-15.)
In February 2012 Melby discovered issues with service plans that Beito had
authorized which were still using Westwood’s base fee and therefore failing to charge
residents for additional services pursuant to the fee-for-service model. (Melby Dep.
85:22-86:19.) Beito, Lehrke, Mike, and Melby met to discuss the issue. (Beito Dep.

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110:25-111:10.) Apparently due to these issues, on March 1, 2012, Mike faxed Beito the
following written directive:
MANAGER - DEANNE
1. Use current grid system (point assessment) immediately for all
residents.
a. Monthly rate for residents is determined off the assessment of the
“individual” resident. (Base rate plus assessment creating an
individualized fee)
b. Assessment is done with the service plan. Always give a copy of
the service plan to the family. The family signs our copy.
c. Use computer service plan found on computer and attach any
needed addendums.
d. Discontinue paper records immediately (today). Everything that
can be put on the computer shall be put on the computer.
e. Manager must be familiar with the point system and pricing for
every resident and check for accuracy. The manager is
responsible for the accuracy of the service plans and must have
an understanding of the computer program.
f. If any problems with understanding the pricing or any other
procedure the manager will consult with the owner without
delay.
Note:
Resident point assessments are completed yearly or if and when
resident’s condition changes. Changes in services and/or points
will require update service plans.
(Second Taber Aff., Ex. X at 30; Beito Dep. 163:15-24.) Beito met with Lehrke the day
she received the directive, signed the directive and faxed it back to Mike, after writing
“completed” next to items a, b, d, and e. (Second Taber Aff., Ex. X at 30; Beito Dep.
164:22-165:10.) Beito testified that everything on the list was already being done prior to
the directive, except for the individualized rates for county residents and the exclusive

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use of computer records. (Beito Dep. 166:2-167:25.) Westwood stopped using paper
records completely after this directive. (Id. 166:22-23.)
Melby testified that another billing issue occurred in May 2012 when Beito billed
a resident for the base fee only, without including an assessment of charges for additional
fees. (Melby Dep. 108:18-24; Second Taber Aff., Ex. Y at 31.) In notes of her meeting
with Beito about the billing issue, Melby indicated that after she explained the assessment
procedure Beito indicated she now understood it. (Second Taber Aff., Ex. Y at 31.) The
next day Melby again met with Beito who informed her that she only billed the base fee
for the assisted pay residents, because that was the most the County would pay. (Id.,
Ex. Z at 32.)

Shortly thereafter, Mike determined that Beito would no longer be

Westwood’s liaison to the County, and designated Melby as the contact person.
(M. Gorra Dep. 154:7-15; Melby Dep. 105:11-24; Second Taber Aff., Ex. AA at 33.)
Later in the spring of 2012 two incidents occurred regarding resident safety that
are related to Beito’s termination. First, on May 16, 2012, a resident wandered out of the
building and fell in the parking lot. (Second Taber Aff., Ex. BB at 35.) Westwood
contends that this was Beito’s fault for failure to use Wanderguard. (Third Parra Decl.,
Ex. 14 at 2.) Wanderguard is a system used to prevent elderly adults with histories of
wandering from leaving a building. (Lehrke Aff. ¶ 23.) Staff would put a band on the
wrist of residents with memory problems and an alarm would go off when the resident
approached any door to the outside. (Id. ¶ 23.) The system was supposed to include a
tester for the doors and for the armband, but the door tester at Westwood was missing or
had never arrived at the facility, meaning that even if a resident was wearing a
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Wanderguard band, no alarm would sound when they approached the facility’s doors.
(Id. ¶¶ 23-25.)
On July 11, 2012, a Westwood employee allowed a resident to walk unassisted
with her walker and the resident fell and broke her arm. (Second Taber Aff., Ex. CC at
36; id., Ex. DD at 37; Beito Dep. 127:15-22.) Pursuant to doctor’s orders, the resident
was supposed to have “staff assistance whenever she moves around her room.” (Beito
Dep. 126:17-24.) Beito testified that she believed the orders had been followed because
the Westwood employee was walking behind the resident’s walker when the accident
occurred, which constituted assistance. (Id. 129:5-24.)

VI.

BEITO’S TERMINATION
When Beito returned to work from vacation on July 23, 2012, the Gorras entered

Beito’s office, locked the door, sat down with Beito, and terminated her. (Id. 130:15-21.)
When Beito asked why, the Gorras stated that they would rather not get into the reasons,
but Beito insisted that she had a right to know. (Id. 130:22-24.) The Gorras then stated
that the termination was because of billing issues, resident care issues, her failure to
support and assist in the rollout of the new computer program, and her failure to allow
staff to talk to the owners. (Id. 131:2-7.) In its answers to interrogatories, Westwood
contends that at her termination meeting, the Gorras also told Beito she was being
terminated due to the occupancy/vacancy rate as well as failure to follow dietary
directives for residents. (Third Parra Decl., Ex. 12 at 17.) Beito stated that these
assessments of her performance were not true and that she believed she was discharged
because of her age (seventy years old). (Beito Dep. 131:9-19.)
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A.

Unemployment Benefits

After her termination, Beito applied for and received unemployment benefits.
(Third Parra Decl., Ex. 13.) Mike’s response to the unemployment commission provided
a list of nineteen reasons for Beito’s discharge. (Id., Ex. 14.) Mike testified that none of
the nineteen reasons “were specifically designed to say that we fired her because of the
reason. This just showed her - - the trend that she was following.” (M. Gorra Dep.
133:25-134:3.) The nineteen reasons given were:
1. Did not allow employees to talk to the applicants superiors (owners). Our
staff are seen by the state as “mandated reporters” for vulnerable adults and
should be allowed to report any maltreatment or concerns.
2. Failed to correct employee negligence problems after several warnings
from other employees that resulted in a resident injury.
3. Didn’t let employees talk to residents.
4. Didn’t use or make available Wanderguard for qualifying residents as
ordered since 2002.
5. Failed to acknowledge client and their family requests regarding services
pertinent to their care.
6. Restricted staff from implementing a diabetic diet and did not provide the
dietary staff with a list of clients with diabetes after Westwood Place hired
Nutritional, Weight and Wellness who presented three inservices totaling
six hours to our staff.
7. Failed to correctly complete service contracts after being trained and
several demands by owner.
8. Failed to bill for services rendered after being trained and ordered by
owner.
9. Changed standard procedures (dropped damage deposits) without
consulting or notifying owners (2006).
10. Changed her work hours without consulting or notifying owners.
11. Delegated her duties to others without consulting or notifying owners.
12. Didn’t answer business phone for hours at a time (last two years).
13. Didn’t change over to call waiting when necessary (last two years).
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14. Fired an employee two weeks before Christmas when the employee had
given a two month notice.
15. Told owners the business phone didn’t have call waiting when it did (July
2012).
16. Did not collect or notify owner on over $30,000 of back rent (period from
2011-2012).
17. Reluctant to assist in the roll out of a software program implemented in
July of 2011, and did not take a leadership role in using it.
18. Tried to file a false insurance claim, when she broke her wrist.
19. Threatened erroneous lawsuit against owners in April 2012.
(Third Parra Decl., Ex. 14)
In addition to disputes about billing, resident safety, the implementation of
Lifestyle Ledger, and Beito’s workers’ compensation claim outlined above, which are
related to Reasons 2, 4, 7, 8, 16, 17, 18, 19, Beito also contests the validity of a variety of
the other reasons for her termination. With respect to Reason 1, Westwood employees
are allowed to talk with the Gorras about anything related to Westwood while the Gorras
are at the facility, and their phone numbers are also on the wall for use in case of
emergency. (R. Gorra Dep. 31:22-33:7.) Rick testified that calling the Gorras was for
emergencies only and that employees were to go to Beito first with any issues. (Id. 32:810, 32:24-33:1, 39:11-18.) Rick testified that no employees ever told him that they were
afraid to report maltreatment. (Id. 108:18-23.) Mike also testified that he was not “aware
of any employee who didn’t report a concern of maltreatment to [him] because of an
instruction Deanne gave them.” (M. Gorra Dep. 130:7-10.)
As to Reason 6, Beito testified that she had never been requested to provide a list
of diabetic clients to dietary staff. (Beito Dep. 99:6-18.) With respect to Reason 9, Rick
testified that he learned of the change in damage deposit procedure in 2011 and that he
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was unaware whether the change had cost Westwood money. (R. Gorra Dep. 116:4117:25.)
In response to Reason 10, Beito testified that she typically worked from 8:00 a.m.
to 5:00 or 5:30 p.m., Monday through Friday.

(Beito Dep. 93:9-13.) There is no

evidence in the record that different hours were expected. Mike testified that Beito
originally worked from 8:00 a.m. to 4:30 p.m. but that she changed her hours to 9:00 a.m.
to 4:00 p.m. (M. Gorra Dep. 119:21-25.) Mike also testified that Beito made this hour
change in the early 1990s and that the change in hours “wasn’t a reason for termination.”
(Id. 119:23-120:7.) Specifically, Mike testified “[t]hat by itself wouldn’t have got her
terminated, but that along with these other 18 did.” (Id. 120:13-15.)
As to Reason 12, Lehrke testified that “whenever [Beito] could, she answered the
telephone as part of her job.”

(Lehrke Aff. ¶ 12.)

Lehrke also testified that

circumstances at Westwood did not allow Beito to answer every phone call, such as the
fact that Westwood’s portable phone did not consistently work in all sections of the
building. (Id.) Lehrke also indicated that Beito instructed other Westwood employees to
answer the phone when she was unavailable. (Id. ¶ 13.)
With respect to Reason 14 and her responsibilities for terminating employees,
Beito testified that she terminated five to six employees, three of whom she remembered
specifically. (Beito Dep. 34:17-24.) Two of the employees were terminated after they
were caught stealing drugs from Westwood. (Id. 35:4-7, 36:4-5.) The third employee
was terminated for disrespectful conduct.

(Id. 35:7-36:1.)

Finally, as for the low

occupancy rates given as a reason for termination in Westwood’s answer to Beito’s
- 22 -

interrogatories, the number of vacancies has actually substantially increased since Beito’s
termination. (Third Parra Decl., Ex. 3 at 4-12.)

B.

Subsequent Managers

After Beito’s termination, Melby became the interim manager of Westwood.
(M. Gorra Dep. 107:6-108:12.) Melby was also involved in the hiring process for the
new manager, and she interviewed her replacement, Theresa Sullivan, with Mike. (Id.
109:10-14.) Theresa Sullivan managed Westwood from August 2012 until she resigned
in May of 2013, due to what she described as a hostile work environment. (Id. 110:22111:23.)

After Sullivan resigned, Melby again took over as interim manager of

Westwood. (Id. 113:4-20.) Melby and Mike then hired Tammie Graupmann. (Id.) Both
Sullivan and Graupmann were in their forties when they were hired by Westwood.
(Third Parra Decl., Exs. 15-16.)

VII.

WORK INSTANCES INVOLVING BEITO’S AGE
Beito alleges that there were several incidents during her employment where her

age was put at issue by the Gorras. In his deposition Mike testified that Beito could have
remained at Westwood until she was 110 if she had been doing her job, “because she
looked good” and “a lot younger” than her age. (M. Gorra Dep. 88:12-16, 89:3-4.) Mike
also stated that for Beito’s position he preferred someone Beito’s age who looked as
young as Beito. (Id. 88:24-89:4.)
In September 2011, Mike overheard a phone call between Beito and Beito’s
daughter during which Beito told her daughter she was not ready to retire. (Beito Dep.
- 23 -

106:5-109:2.) Rick later told Beito that Mike had overheard the conversation, and Rick
asked Beito not to quit. (Id. 108:1-6.) He told her she was a good manager, and she told
him the Gorras would be the first to know if she had plans to retire. (Id.) Beito also
claims that Rick and Rick’s wife told her to simply keep doing her job, and that it would
be “stupid” for Mike to fire Beito because Beito could then file an age discrimination
lawsuit. (Third Parra Decl., Ex. 9 at 4.) Beito testified that Rick continued to ask her
about retirement throughout late 2011 and early 2012. (Beito Dep. 108:1-24.)
Westwood presented evidence that of the thirty-one employees working at
Westwood during the five years preceding Beito’s termination, twenty-three were over
the age of forty. (Second Taber Aff., Ex. C at 40-41.) None of these employees were
terminated. (Id.)

VIII. CHARGE OF DISCRIMINATION
In November 2012 Beito filed a charge of discrimination with the Equal
Employment Opportunity Commission (“EEOC”). (Third Parra Decl., Ex. 17.) In its
response, Westwood listed the reasons for Beito’s termination as resident endangerment
issues, interference with staff reporting mandates, refusal to bill for allowed add-on
charges and delinquent residential accounts, resistance to other changes, and “worker’s
compensation claim.” (Third Parra Decl., Ex. 18 at 7.) The response also discussed
Beito’s refusal to market or promote Westwood and refusal to implement use of an
electronic time clock. (Id., Ex. 18 at 9-10.) With respect to the workers’ compensation
claim, the response indicated:

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The worker’s compensation claim and its denial as explained to Michael J.
Gorra by the claims adjuster for the workers’ compensation carrier and the
Charging Party’s threat of a lawsuit against Westwood, raise additional
concerns over the Charging Party’s credibility and her desire to remain an
employee of the Company.
(Id., Ex. 18 at 11.) Mike testified that he never spoke to any representative from West
Bend (the claims adjuster) and did not review any of the documents associated with
Beito’s workers’ compensation claim before firing her. (M. Gorra Dep. 15:9-12.)

IX.

COMPLAINT
On March 8, 2013, Beito filed a complaint against Westwood alleging that she

was terminated due to her age in violation of the ADEA and the MHRA. (Compl. ¶¶ 2637, Mar. 8, 2013, Docket No. 1.) Beito filed an amended complaint on September 26,
2013, alleging an additional claim for violation of Minn. Stat. § 176.82, subd. 1, which
makes it unlawful for any person to discharge or threaten to discharge an employee for
seeking workers’ compensation benefits. (Am. Compl. ¶¶ 44-49, Sept. 26, 2013, Docket
No. 26.)

ANALYSIS
I.

STANDARD OF REVIEW
Summary judgment is appropriate where there are no genuine issues of material

fact and the moving party can demonstrate that it is entitled to judgment as a matter of
law. Fed. R. Civ. P. 56(a). A fact is material if it might affect the outcome of the suit,
and a dispute is genuine if the evidence is such that it could lead a reasonable jury to
return a verdict for either party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248
- 25 -

(1986). A court considering a motion for summary judgment must view the facts in the
light most favorable to the non-moving party and give that party the benefit of all
reasonable inferences to be drawn from those facts. Matsushita Elec. Indus. Co. v. Zenith
Radio Corp., 475 U.S. 574, 587 (1986).

Summary judgment is appropriate if the

nonmoving party “fails to make a showing sufficient to establish the existence of [each]
element essential to that party’s case, and on which that party will bear the burden of
proof at trial.” Celotex Corp. v. Catrett, 477 U.S. 317, 322-23 (1986). “Credibility
determinations, the weighing of the evidence, and the drawing of legitimate inferences
from the facts are jury functions, not those of a judge.” Torgerson v. City of Rochester,
643 F.3d 1031, 1042 (8th Cir. 2011) (internal quotation marks omitted).

II.

WORKERS’ COMPENSATION CLAIMS
Although the amended complaint is not a model of clarity, it appears that Beito

alleges two separate claims under Minnesota’s Workers’ Compensation Act. First, Beito
argues that Westwood threatened to discharge her for seeking benefits under the Act, and
second, that Westwood terminated her in retaliation for seeking workers’ compensation
benefits. (See Am. Compl. ¶¶ 21, 25, 45.)

A.

Threat to Discharge

Minnesota Statutes § 176.82, subdivision 1. creates liability for “threatening to
discharge an employee for seeking workers’ compensation benefits or in any manner
intentionally obstructing an employee seeking workers’ compensation benefits.” Minn.

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Stat § 176.82, subd. 1. A claim for threatening to discharge an employee for seeking
workers’ compensation benefits requires a plaintiff to show that:
(1) a person with knowledge that the plaintiff suffered a workplace injury;
(2) attempted to dissuade the plaintiff from seeking workers’ compensation
benefits through one or more communications; (3) the communication(s)
created a reasonable apprehension of discharge; and (4) as a result, the
plaintiff delayed or ceased seeking workers’ compensation benefits.
Schmitz v. U.S. Steel Corp., 831 N.W.2d 656, 669 (Minn. Ct. App. 2013). A plaintiff is
not required to show “that the threat resulted in an actual loss of benefits” as such a
requirement “would transform a claim for ‘threatening to discharge’ an employee into
another form of an intentional-obstruction-of-benefits claims, rendering the language of
the statute superfluous.” Id.
Westwood argues that Beito’s claim for threat to discharge cannot survive
summary judgment because “neither Mike nor Rick said or did anything, or engaged in
any conduct that led her to believe that she could not or should not seek workers’
compensation benefits during her employment.” (Def.’s Mem. in Supp. of Mot. for
Summ. J. at 29, Dec. 23, 2013, Docket No. 31.) But Westwood’s argument focuses
entirely on the period of time when Beito initially sought workers’ compensation benefits
on February 14 – the day of the accident. In defining what constitutes a threat “for
seeking” workers’ compensation benefits, the Minnesota Court of Appeals has concluded
that to seek means “[t]o endeavor to obtain,” and therefore the statute “‘provide[s] a
cause of action for an employee when an employer or insurance carrier used threats or
coercion to discourage or prevent an employee from pursuing a claim for workers’
compensation.’”

Schmitz, 831 N.W.2d at 667 (emphasis added) (quoting Furrer v.
- 27 -

Campbell’s Soup Co., 403 N.W.2d 658, 660 (Minn. Ct. App. 1987)). Therefore, an
employee has a cause of action under the statute if an employer’s conduct prevents an
employee from taking steps in furtherance of obtaining workers’ compensation benefits,
even if the conduct occurs after the initial claim for benefits has already been made.
With this interpretation in mind, the Court concludes that Beito has presented
sufficient evidence in support of her threat to discharge claim to survive summary
judgment.

With respect to the first element, it is undisputed that the Gorras had

knowledge that Beito suffered an injury at work. Beito testified that she spoke with both
Mike and Rick on the day of her injury, and that Rick was in contact with West Bend
regarding the injury.
As for the second and third element – that the person with knowledge attempted to
dissuade the employee from seeking workers’ compensation benefits and that the attempt
created a reasonable apprehension of discharge – the Court concludes that Beito has
presented sufficient evidence upon which a reasonable jury could conclude that the
Gorras attempted to dissuade her from seeking workers’ compensation benefits and this
attempt created a reasonable apprehension of discharge.

Specifically, Beito

communicated to Mike that West Bend had denied her workers’ compensation benefits
and that she intended to appeal that denial.8 At that point Mike told her she could be

8

Westwood argues that Beito’s deposition testimony regarding her conversation with
Mike is “inconsistent” with the allegations in the amended complaint. (Def.’s Mem. in Supp. of
Mot. for Summ. J. at 16 n.12, 30.) In the amended complaint, Beito alleges that “Plaintiff told
Michael Gorra that she believed she had been illegally denied workers’ compensation benefits
and that her son-in-law had offered to help her file a lawsuit against Westwood because of it.”
(Am. Compl. ¶ 21.) In her deposition Beito testified that she told Mike that her son-in-law “said
(Footnote continued on next page.)

- 28 -

fired for threatening to sue her employer. Shortly thereafter, Rick told Beito that she
should not drag him into court over a workers’ compensation claim. Beito testified that
as a result of these comments she became concerned about losing her job. A reasonable
jury could conclude that the Gorras’ comments – suggesting that it would be possible that
she would be fired – were intended to dissuade Beito from further pursuing her workers’
compensation benefits.
Westwood argues that Mike’s response – that Beito could be fired for threatening
to sue her employer “shows that it was Plaintiff’s comment that prompted his response –
not her pursuit of benefits” and that the response “provoked by Plaintiff’s comment is
substantially different from Mike making an unsolicited comment to Plaintiff in an
attempt to dissuade her from seeking workers’ compensation benefits.” (Def.’s Mem. in
Supp. of Mot. for Summ. J. at 31 (emphasis in original).) Therefore, Westwood contends
that summary judgment in its favor is appropriate regarding Beito’s threat to discharge
____________________________________
(Footnote continued.)

that I could appeal the denial claim.” (Beito Dep. 262:2-4.) In response to the question “So it’s
your testimony as we sit here today that . . . you did not tell Mike Gorra that your son-in-law had
offered to help you file a lawsuit against Westwood,” Beito answered “I don’t know how to
answer that, because is the lawsuit and an appeal the same thing?” (Id. 262:18-23.) Even
assuming that the recitation of the conversation in the amended complaint and the deposition are
inconsistent (which, given Beito’s testimony indicating that she believed an appeal and a lawsuit
to be the same thing is unlikely), Westwood fails to explain what impact such an inconsistency
has on the present motion. In other words, Westwood has identified no material difference
between use of the term “appeal” or “lawsuit” in the context of a threat to discharge claim.
Whether Beito used the word “appeal” or “lawsuit” when she spoke to Mike about her intent to
challenge the denial of her workers’ compensation benefits, it is undisputed that Mike responded
by telling her that she could be fired for threatening to sue him. A reasonable jury could
conclude that this statement – whether made in response to a comment that Beito would appeal
the denial or file a lawsuit regarding the denial – dissuaded Beito from pursuing her workers’
compensation benefits.

- 29 -

claim. But Westwood’s argument fails for three primary reasons. First, even assuming
that Beito’s comment could be disaggregated from her pursuit of benefits and that Mike’s
response was directed solely at the fact of her comment not its content, Westwood fails to
explain the significance of this distinction. In other words, whether Mike told Beito that
she could be fired for threatening to sue her employer in response to the fact that Beito
made a comment or because she threatened to sue over the denial of her workers’
compensation benefits, a reasonable jury could still conclude that Mike’s communication
was made to dissuade Beito from pursuing workers’ compensation benefits and created in
Beito a reasonable apprehension of discharge. Second, Westwood has identified no
authority for the proposition that Minn. Stat § 176.82, subd. 1, requires that an
employer’s threat to discharge come in the form of an unsolicited comment, rather than in
response to a conversation initiated by the employee. Finally, Westwood’s interpretation
of Mike’s comments – and what he meant or did not mean – weighs the evidence and
draws inferences about Mike’s comment, which are functions of the jury – not questions
to be resolved by the Court on summary judgment. Therefore, the Court concludes that
Beito has satisfied her burden of proof at this stage that Westwood attempted to dissuade
her from seeking workers’ compensation benefits which had the effect of creating a
reasonable apprehension of discharge.
Finally, it is undisputed that Beito has satisfied the fourth element of her threat to
discharge claim – that she delayed or ceased seeking workers’ compensation benefits.
This element requires that the employee “not only feel threatened but also be deterred in
some way, either by not filing a claim, delaying filing a claim, or taking some other
- 30 -

action to the detriment of recovering benefits.” Schmitz, 831 N.W.2d at 668; see also
Summers v. R&D Agency, Inc., 593 N.W.2d 241, 244 (Minn. Ct. App. 1999) (explaining
that a cause of action under Minn. Stat. § 176.82 “requires an actual obstruction of
benefits”). In response to the denial of her workers’ compensation claim, Beito agreed to
mediation, which could have provided her with certain benefits under the statute. See
Fjeld v. Olsen, No. C4-00-2077, 2001 WL 826880, at *1 (Minn. Ct. App. July 24, 2001)
(noting that a settlement reached in a voluntary mediation resulted in an agreement by the
workers’ compensation in insurer to pay the employee). Although up until the point that
she spoke with the Gorras regarding her claim Beito had been diligently pursuing her
workers’ compensation claim, shortly after she spoke with Mike and he told her she
could be fired for appealing or filing a lawsuit related to the denial of her workers’
compensation benefits, she cancelled the mediation and told West Bend that she “just
want[ed] to drop the whole matter.” (Beito Dep. 253:21-25.) Failing to go forward with
mediation certainly was an “action to the detriment” of Beito recovering benefits under
the Act. See Schmitz, 831 N.W.2d at 668. Furthermore, because Beito “drop[ped] the
whole matter,” in addition to not participating in mediation, she also never exercised her
other rights under the Workers’ Compensation Act, such as initiating proceedings to
challenge West Bend’s denial of coverage, that could have entitled her to benefits under
the Act. See, e.g., Minn. Stat. §§ 176.271, 176.291. Because a reasonable jury could
conclude that the Gorras attempted to dissuade Beito from pursuing her workers’
compensation claim by creating a reasonable apprehension of discharge, and that Beito
stopped pursuing her workers’ compensation benefits as a result, the Court will deny
- 31 -

Westwood’s motion for summary judgment with respect to Beito’s threat of discharge
claim.

B.

Retaliatory Discharge

Minnesota Statutes § 176.82 provides that “[a]ny person discharging . . . an
employee for seeking workers’ compensation benefits . . . is liable in a civil action for
damages incurred by the employee.” Minn. Stat. § 176.82, subd. 1. “To defeat summary
judgment on a retaliation claim, a plaintiff must produce either direct evidence of
retaliation, or create an inference of retaliation under the McDonnell Douglas burdenshifting framework.” Pye v. Nu Aire, Inc., 641 F.3d 1011, 1020 (8th Cir. 2011) (internal
quotation marks omitted); see also Yalley v. Ozark Auto. Distribs., Inc., Civ. No. 111961, 2013 WL 50452, at *7 & n.11 (D. Minn. Jan. 3, 2013) (allowing plaintiff to prove
his retaliation claim under Minnesota’s Workers’ Compensation Act through direct
evidence). Beito claims that she can establish direct evidence that her termination was in
retaliation for seeking workers’ compensation benefits, making the McDonnell Douglas
framework unnecessary.9
“Direct evidence of retaliation is evidence that demonstrates a specific link
between a materially adverse action and the protected conduct, sufficient to support a
finding by a reasonable fact finder that the harmful adverse action was in retaliation for
9

Even where a plaintiff shows retaliation with direct evidence, she must still show that
she engaged in protected conduct. See Smith v. Int’l Paper Co., 523 F.3d 845, 848 n.2 (8th Cir.
2008). Here, it is undisputed that Beito engaged in protected conduct when she filed a workers’
compensation claim. See Otto v. City of Victoria, 834 F. Supp. 2d 912, 919 (D. Minn. 2011)
(explaining that the employee engaged in protected conduct when he “applied for workers’
compensation benefits”).
- 32 -

the protected conduct.” Pye, 641 F.3d at 1020. “‘Direct’ refers to the causal strength of
the proof, not whether it is ‘circumstantial’ evidence.” Griffith v. City of Des Moines,
387 F.3d 733, 736 (8th Cir. 2004); see also Friend v. Gopher Co., 771 N.W.2d 33, 38
(Minn. Ct. App. 2009) (“In contrast to the process of elimination that takes place under
McDonnell Douglas, direct-evidence cases are adjudicated based on the strength of
affirmative evidence of discriminatory motive.”). Direct “evidence must be strong and
must clearly point to the presence of an illegal motive for the adverse action,” Bone v.
G4S Youth Servs., LLC, 686 F.3d 948, 953 (8th Cir. 2012) (alteration and internal
quotation marks omitted), and is most often comprised of “remarks by decisionmakers
that reflect, without inference, a [retaliatory] bias,” McCullough v. Univ. of Ark. for Med.
Sciences, 559 F.3d 855, 861 (8th Cir. 2009).
Beito argues that there is direct evidence that she was terminated because of her
workers’ compensation claim because (1) the Gorras threatened her with discharge for
pursuing workers’ compensation claims; and (2) the various documents memorializing
the reasons for Beito’s termination include the reason that she filed a workers’
compensation claim. The Court concludes that this evidence provides the specific link
between the adverse action and the protected conduct required to employ the direct
evidence method. Here, Mike stated in his reasons for Beito’s termination that she was
terminated because she “[t]ried to file a false insurance claim, when she broke her wrist”
and “[t]hreatened erroneous lawsuit against owners in April 2012.” (Third Parra Decl.,
Ex. 14 at 3.) Melby also testified that one of the reasons Mike fired Beito was “the
workman’s comp claim that she tried to fraudulently submit.” (Melby Dep. 170:1-21.)
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Additionally in Westwood’s response to Beito’s filing with the EEOC it listed “the
following performance deficiencies . . . discovered under her watch as director” which
included “[w]orker’s compensation claim.” (Third Parra Decl., Ex. 18 at 6-7.)10 This
type of evidence “directly reflects the alleged [retaliatory] attitude” of the decisionmaker,
and is not “of the sort that would require a series of inferences to be drawn before a
discriminatory attitude could be attributed to those who made the employment decisions
she challenges.” Cronquist v. City of Minneapolis, 237 F.3d 920, 926 (8th Cir. 2001)
(internal quotation marks omitted); see Young-Losee v. Graphic Packaging Int’l, Inc.,
631 F.3d 909, 912 (8th Cir. 2011) (finding direct evidence of a causal link between the
protected activity of filing a formal complaint of harassment and plaintiff’s termination
where the supervisor “wadded up her complaint, called it ‘total bullshit,’ threw it in the
garbage can, told her to leave, and said that he never wanted to see her again”); Yalley,
2013 WL 50452 at *7 (finding direct evidence of retaliation for filing workers’
compensation claim where employer stated “Yalley was being terminated because he had
been costing the company too much money”). “An employer may not subjectively assess
the validity of an employee’s workers’ compensation claim and use self-help as
punishment without exposure to a retaliatory discharge suit.”
10

Randall v. N. Milk

The evidence presented here distinguishes Beito’s case from non-direct evidence in
other, somewhat similar cases where the employer’s stated reason for termination is related to
the workers’ compensation claim but is framed as a breach of company policy. See Schaefer v.
BioLife Plasma L.L.C., Civ. No. 11-3468, 2013 WL 5275818, at *5 n.8 (D. Minn. Sept. 18,
2013) (“Schaefer claims that she presents direct evidence of retaliation because BioLife’s
termination of Schaefer was related to her claim that she was injured. But Schaefer does not
present any direct evidence that she was terminated because of her workers’ compensation claim.
Rather, the evidence she identifies (for example the Employee Conference Memorandum) states
that she was terminated because she falsified a company report, that is, the incident report.”).
- 34 -

Products, Inc., 519 N.W.2d 456, 460 (Minn. Ct. App. 1994). Similarly, it would be
contrary to the “remedial and humanitarian purpose of the Worker’s Compensation Act,”
Harrison v. Schafer Constr. Co., 257 N.W.2d 336, 338 (Minn. 1977), to allow employers
to fire an employee for the stated reason that the employee filed a workers’ compensation
claim that was denied, as such a practice could have as much of a chilling effect on
seeking benefits as would firing employees that successfully obtain benefits under the
Act. Accordingly, based on the record presented here, the Court concludes that the
evidence is sufficient for a reasonable jury to find a direct causal link between Beito’s
termination and her application for workers’ compensation benefits, and will therefore
deny Westwood’s motion for summary judgment with respect to this claim.

III.

AGE DISCRIMINATION
The ADEA makes it unlawful for an employer to discriminate against any

individual based on age, 29 U.S.C. § 623(a)(1), and prohibits discrimination against
individuals who are at least forty years old, id. § 631(a). Similarly, the MHRA prohibits
an employer from making adverse employment decisions against an employee on the
basis of the employee’s age. Minn. Stat. § 363A.08, subd. 2. The plaintiff must establish
that age was the “but-for” cause of the adverse employment action. Gross v. FBL Fin.
Servs., Inc., 557 U.S. 167, 177 (2009).11 In the absence of direct evidence, courts apply

11

Beito argues that under the MHRA the plaintiff is required to demonstrate only that
“age was ‘a motivating factor’ in the termination decision, rather than the determinative factor.”
(Pl.’s Mem. in Opp’n to Def.’s Mot. for Summ. J. at 25, Jan. 13, 2014, Docket No. 37 (emphasis
in original) (quoting Roberts v. Park Nicollet Health Servs., 528 F.3d 1123 (8th Cir. 2008)). In
2009 the Supreme Court decided Gross, holding that a but-for causation standard applies to
(Footnote continued on next page.)

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the McDonnell Douglas burden-shifting framework to claims for age discrimination. See
Haigh v. Gelita USA, Inc., 632 F.3d 464, 468 (8th Cir. 2011); Friend, 771 N.W.2d at 3738. In a wrongful termination case, a plaintiff must first demonstrate a prima facie case
of age discrimination by showing that (1) she was over 40 years old; (2) she was
terminated; (3) she was meeting her employer’s reasonable expectations at the time she
was terminated; and (4) she was replaced by an individual who was substantially
younger.” Haigh, 632 F.3d at 468. “Once the plaintiff establishes a prima facie case, the
burden of production shifts to the employer to articulate a legitimate, nondiscriminatory
reason for its adverse employment action.” Rahlf, 642 F.3d at 637. Once the employer
comes forward with a legitimate, nondiscriminatory reason, “the burden returns to [the
plaintiff] to prove [the employer]’s reason was mere pretext for discrimination.” Haigh,
632 F.3d at 468. Here, Westwood concedes that for purposes of this motion, Beito has
established a prima facie case of age discrimination. Accordingly, the Court will analyze
only Westwood’s proffered reason for termination and Beito’s evidence of pretext.
____________________________________
(Footnote continued.)

ADEA claims. 557 U.S. at 177. Although Minnesota courts have typically construed MHRA
claims “in accordance with federal precedent,” Rothmeir v. Inv. Advisers, Inc., 85 F.3d 1328,
1338 (8th Cir. 1996), Minnesota courts have not yet addressed the causation standard under the
MHRA in light of Gross, see Wagner v. Gallup, Inc., Civ. No. 12-1816, 2013 WL 6729429, at
*3 n.4 (D. Minn. Dec. 20, 2013). Post-Gross, the Eighth Circuit and courts in this District have
continued to apply analogous standards to claims brought under the ADEA and MHRA. See,
e.g., Chambers v. Travelers Cos., 668 F.3d 559, 566 (8th Cir. 2012); Rahlf v. Mo-Tech Corp., 642
F.3d 633, 636 n.2 (8th Cir. 2011); McCraken v. Carleton College, 969 F. Supp. 2d 1118, 1127
(D. Minn. 2013). Because the Court concludes that summary judgment in Westwood’s favor is
inappropriate on Beito’s age discrimination claim, even under the more difficult but for standard
of causation established in Gross, it need not address at this time whether it would be sufficient
for Beito to show, for purposes of her MHRA claim, that age was simply a motivating rather
than a determinative factor in her termination. Instead the Court will analyze the claims under
the MHRA and the ADEA using the same standards.
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A.

Legitimate Nondiscriminatory Reason

At this stage, Westwood must merely “articulate[] lawful reasons for the action;
that is, . . . produce admissible evidence which would allow the trier of fact rationally to
conclude that the employment decision had not been motivated by discriminatory
animus.” Tex. Dep’t of Cmty. Affairs v. Burdine, 450 U.S. 248, 256-57 (1981) (holding
that “the employer’s burden is satisfied if he simply explains what he has done or
produces evidence of legitimate nondiscriminatory reasons” (alterations and internal
quotation marks omitted)). Here, the Court concludes that Westwood has offered some
legitimate, nondiscriminatory reasons for termination.

Specifically, as described in

Westwood’s brief, Beito was terminated for performing issues that include, but are not
limited to “(1) repeatedly failing to maintain correct, up-to-date resident service plans;
(2) failing to take necessary action so Westwood could bill for customized living
services; (3) failing to support the implementation of a new software program;
(4) allowing two resident accounts to become considerably overdue; and (5) two
concerning resident care incidents.” (Def.’s Mem. in Supp. of Mot. for Summ. J. at 1.)
These proffered reasons are sufficient to satisfy Westwood’s burden at this stage. See
Rose-Maston v. NME Hosps., Inc., 133 F.3d 1104, 1108 (8th Cir. 1998) (holding that
“poor job performance” was a legitimate, nondiscriminatory reason for termination).

B.

Pretext

At this stage, Beito “must present evidence, that considered in its entirety
(1) creates a fact issue as to whether the defendant’s proffered reasons are pretextual and
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(2) creates a reasonable inference that age was a determinative factor in the adverse
employment decision.” Tusing v. Des Moines Indep. Cmty. Sch. Dist., 639 F.3d 507, 516
(8th Cir. 2011) (internal quotation marks omitted).

A pretext inquiry “is limited to

whether the employer gave an honest explanation of its behavior, not whether its action
was wise, fair, or correct.” McKay v. U.S. Dep’t of Transp., 340 F.3d 695, 700 (8th Cir.
2003) (internal quotation marks omitted). Pretext may be shown by demonstrating that
an employer’s explanation for an adverse employment action “is unworthy of credence
because it has no basis in fact.” Torgerson, 643 F.3d at 1047 (alteration and internal
quotation marks omitted). A plaintiff may also demonstrate a material question of fact
regarding pretext “by showing that an employer (1) failed to follow its own policies,
(2) treated similarly-situated employees in a disparate manner, or (3) shifted its
explanation of the employment decision.” Lake v. Yellow Transp. Inc., 596 F.3d 871,
874 (8th Cir. 2010).
With respect to the second part of the pretext inquiry, evidence that an employer’s
termination decision was based on age may include “either statistical evidence (such as a
pattern of forced early retirement or failure to promote older employees) or
‘circumstantial’ evidence (such as comments and practices that suggest a preference for
younger employees.)” Rahlf, 642 F.3d at 637 (internal quotation marks omitted). Here,
the Court concludes that Beito has presented sufficient evidence of pretext to survive
Westwood’s motion for summary judgment by presenting evidence of Westwood’s
shifting explanation, evidence refuting the factual basis for the stated termination reasons,
and circumstantial evidence that her age was a determinative factor in her termination.
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1.

Shifting Explanation

First, Beito has identified that Westwood’s explanation for her termination has
shifted over time. During her termination meeting, the Gorras stated that Beito was being
terminated because of billing issues, resident care issues, problems with Beito’s support
and assistance related to LifeStyle Ledger, and her failure to allow staff to talk to the
Gorras. In response to the unemployment commission, Mike raised an entirely new set of
issues, for example, the fact that Beito changed her work hours in the late 1990s, changed
the procedure for damage deposits in 2006, fired an employee two weeks before
Christmas, and filed a workers’ compensation claim. In response to Beito’s EEOC
charge, Westwood listed its reasons for termination as resident endangerment issues,
interference with staff reporting mandates, refusal to bill for allowed add-on charges and
delinquent residential accounts, resistance to other changes, and her filing of a workers’
compensation claim, and added Beito’s alleged refusal to market or promote Westwood
and use an electronic time clock as a basis for termination. The fact that Westwood’s
explanation shifted over time could allow a jury to reasonably conclude that the various
“proffered explanation[s] w[ere] not the true motivating explanation[s].” Wallace v.
DTG Operations, Inc., 442 F.3d 1112, 1121, 1124 (8th Cir. 2006) (“At her termination, no
one from the Company suggested that performance factored into the termination decision.
Nevertheless, in these proceedings, the Company raises performance issues as a . . . nonretaliatory motive for Ms. Wallace’s termination. . . . While these factors might provide
evidence of a non-retaliatory motive, a jury could reasonably infer that the Company’s
after-the-fact reliance on these facts is evidence that the Company is dissembling to cover
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up an impermissible motive.”), abrogated on other grounds by Torgerson, 643 F.3d
1031.12

2.

No Factual Basis

Beito has also presented evidence that creates a material issue of fact as to whether
Westwood’s stated reasons for termination are pretextual.13 As an initial matter, the

12

Westwood argues that its explanation did not shift because all of the reasons given at
various points following Beito’s termination relate to her poor job performance. (See Def.’s
Reply at 4.) But at no point did Westwood state that its reason for Beito’s termination was her
poor performance. Therefore, this is not a case where the employer is simply “elaborat[ing] on
the same explanation.” See Arraleh v. Cnty. of Ramsey, 461 F.3d 967, 977 (8th Cir. 2006).
Instead, following Beito’s termination Westwood has proffered very specific reasons for her
termination. Although some of these reasons relate to Beito’s performance, at various points
following her termination Westwood has offered entirely new and different explanations of what
that poor performance may have related to and offered other rationale for why she was
terminated. Westwood identified specific issues with Beito’s performance that it gave as reasons
for her termination at the initial termination. Westwood then identified new, unrelated issues –
such as Beito changing her work hours and filing a workers’ compensation claim – that were
added as reasons for termination in response to the unemployment commission. In response to
the EEOC charge, Westwood again reframed the reasons for Beito’s termination citing, for
example, her refusal to use an electronic time card system. Therefore, a reasonable jury could
properly consider the evidence of Westwood’s shifting explanation as supporting a finding of
pretext.
13

The Court focuses its discussion here on the reasons for termination that Westwood
actually discussed in its brief. With respect to several of the stated reasons for termination given
on Mike’s nineteen-point list, for which Westwood provided no explanation or evidence in its
brief Westwood has failed to “clearly set forth, through the introduction of admissible evidence,
the reasons for” Beito’s termination. See Burdine, 450 U.S. at 255. For example, Westwood
contends that it terminated Beito because she “[d]idn’t let employees talk to residents,” “[f]ailed
to correct employee negligence problems” and “[d]elegated her duties to others without
consulting or notifying owners.” (Third Parra Decl., Ex. 14.) But Westwood did not offer any
evidence regarding this conduct and by failing to discuss these incidents in its brief have failed
“to frame the factual issue with sufficient clarity so that the plaintiff will have a full and fair
opportunity to demonstrate pretext,” as required to fulfill its burden of demonstrating a
legitimate, nondiscriminatory reason for termination. See Burdine, 450 U.S. at 255-56.
Additionally, with respect to many of the other stated reasons for termination given by
Westwood at various points not included in its brief, Beito has demonstrated that the reasons lack
(Footnote continued on next page.)

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Court notes that, taking all inferences in Beito’s favor at this summary judgment stage,
Beito need only present evidence that would allow a reasonable jury to conclude that
some of the stated reasons for her termination were pretext for illegal discrimination. In
other words, even if a few of the reasons for termination provided by Westwood at
various points have some basis in fact, that would not prevent a jury from concluding that
Beito’s termination was the result of discrimination on the basis of age, because Mike
specifically testified that none of the reasons given “were specifically designed to say that
we fired her because of that reason.” (M. Gorra Dep. 133:25-134:3.) Therefore, viewing
the facts in the light most favorable to Beito, a jury could conclude that Mike’s list of
nineteen reasons was intended to be an explanation of the cumulative errors that led to
Beito’s termination. (See id. 120:13-15 (explaining with respect to one of the reasons for
termination that the reason “by itself wouldn’t have got her terminated, but that along
with these other 18 did”).) If a jury concluded that several of the proffered reasons were
false, it could reasonably conclude that the reasons for termination as a whole were
pretext for illegal discrimination because Mike had testified that he relied on each of
those reasons in combination to reach the ultimate decision to terminate Beito.
Therefore, the Court notes that the discussion which follows is intended to be
____________________________________
(Footnote continued.)

a basis in fact. For example, Mike himself testified that he was unaware of any employees who
failed to report a concern of maltreatment because of Beito, although he claimed that she
prevented employees from reporting maltreatment as a basis for termination. Beito also
presented evidence that she was never asked to provide a list of diabetic clients to dietary staff,
that she typically worked from 8:00 a.m. to 5:00 or 5:30 p.m., which was within the hours
expected of her, that she answered the telephone when possible, and that the occupancy rate was
at an all-time high at Westwood during her tenure as manager.

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representative of the types of conclusions a jury could reach with regard to the primary
reasons for termination discussed by Westwood, not an exhaustive dissection of the
reasons for termination offered.
With respect to the stated reason that Beito failed to maintain up-to-date resident
service plans, Beito has presented evidence that, if believed, would allow a jury to
conclude that Westwood did not “in good faith believe[] that [Beito] was guilty of the
conduct justifying discharge.” Pulczinski v. Trinity Structural Towers, Inc., 691 F.3d
996, 1002 (8th Cir. 2012) (internal quotation marks omitted).

Westwood presented

evidence of a few instances of discrepancies between doctors’ orders and service plans
that Melby discovered in July 2011. But after these discrepancies were brought to
Beito’s and Lehrke’s attention, the record reflects no further issues regarding the
accuracy of resident service plans (with the exception of billing, which the Court will
discuss below). Although Westwood claimed that this was a basis for termination, it did
not terminate Beito until over a year after the discrepancies were discovered and
resolved, suggesting that a jury could conclude that Mike did not believe this issue was
truly a justification for termination. Additionally, although Lehrke was responsible for
generating resident service plans, she was not disciplined or terminated for the alleged
inaccuracies in the plans.
In its brief Westwood also maintains that Beito was fired for failing to take action
to enable Westwood to bill for customized living services. But the record contains
numerous factual disputes regarding Beito’s role with respect to Westwood’s struggles in
transitioning to billing on the basis of customized services, upon which a jury could
- 42 -

conclude that this reason for termination has no basis in fact. Specifically, Beito testified
that after the state made the switch from billing flat fees to allowing assisted pay clients
to be billed pursuant to a customized billing program in 2006 she advised Mike several
times about the ability to change Westwood’s method of billing. Beito also testified that
Mike indicated he did not want to change Westwood’s billing procedures. Both Beito
and Rick testified that without the Gorras’ approval, Beito could not unilaterally change
Westwood’s rate structure. Therefore, to the extent the stated reason for termination
relates to Beito’s alleged failure to start the process of customized billing sooner than
2011, a jury could conclude that this rationale has no basis in fact as Mike’s failure to
approve a change in Westwood’s rate structure prevented Beito from beginning that
process.
It is undisputed that Beito did become aware of Mike’s desire to transition to a
fee-for-services billing model in August 2011 when she received the directive to
“develop cost list (with assistance of nurse) for service to be offered, and now offered, by
Westwood.” (Second Taber Aff., Ex. K at 59.) To the extent the stated reason for
Beito’s termination was due to her failure to adequately undertake this directive, the
Court concludes that the record contains sufficient facts upon which a jury could
conclude that Beito did undertake that directive. Beito drafted a letter to the County in
September 2011 regarding the transition in billing, developed a cost list, and made efforts
to contact the County. Additionally, the record reflects that Beito drafted a letter to
private pay residents regarding a change in fee structure, but was directed not to send the
letter until negotiations were completed with the County, suggesting that the delay in
- 43 -

implementing a transition in fee structure was not attributable to Beito. Beito also
presented evidence that, even though Melby began contacting the County in September
or October 2011, she was unable to actually transition to billing on a fee-for-service basis
until the late summer or early fall of 2012 after Beito’s termination, also suggesting that
the delay in implementing a transition in fee structure was related to the County’s nonresponsiveness and not Beito’s performance, as Melby’s ability to obtain prompt results
from the County was similarly poor. Furthermore, Westwood presented evidence that
Melby allegedly discovered an error in a service plan that failed to use a fee-for-services
model. But this alleged error was discovered in February 2012 – before Westwood had
switched to a fee-for-services billing model for either assisted or private pay clients. An
additional error was allegedly discovered in an assisted pay resident’s service plan in
May 2012, but the record reflects that Westwood did not switch to fee-for-services billing
for assisted pay clients until after Beito’s termination. Therefore, a jury could conclude
that Mike did not truly believe that Beito was not performing her job by failing to use a
billing system that Westwood had not yet adopted.
As for the stated reason that Beito failed to support implementation of Lifestyle
Ledger, the record also contain disputed facts that would allow a jury to conclude the
stated reason was pretext for illegal discrimination. Beito presented evidence that the
Westwood staff as a whole experienced frustrations using the software. Melby herself
testified that the initial rollout of the software was fraught with difficulty due to
Westwood’s internet connection.

Therefore, a reasonable jury could conclude that

Beito’s perceived uncooperativeness when she voiced her concerns about the software to
- 44 -

Melby was not an actual basis for termination because other staff voiced the same
frustrations and the record contains ample evidence of the problems that plagued
Lifestyle Ledger. Additionally, to the extent the reason for termination was based on
Beito’s continued reliance on paper charts as backup after the beta testing of Lifestyle
Ledger began, a reasonable jury could conclude that Mike did not believe this to be
misconduct on Beito’s part in light of the Agreement which specifically instructed
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” and
not to “rely exclusively on the software for any reason.” (Third Parra Decl., Ex. 6 at 2-3.)
Furthermore, the record reflects that by the summer of 2012 – prior to Beito’s
termination, Melby consistently complimented Westwood staff and noted excellent
improvements in using Lifestyle Ledger and moving away from paper charting. The fact
that Beito was fired after the issues with Lifestyle Ledger were resolved, could lead a
reasonable jury to conclude that Mike did not “honestly believe[] the asserted grounds”
for termination. Twymon v. Wells Fargo & Co., 462 F.3d 925, 934-35 (8th Cir. 2006).
With respect to the stated reason for termination that Beito allowed two resident
accounts to become considerably overdue, a reasonable jury could also conclude that
Mike did not actually believe this was a reason for termination. First, Beito presented
evidence that Westwood employs a bookkeeper who is responsible for recording and
depositing resident rent, maintaining a list of overdue accounts, and reports to Rick
accounts that are in arrears every month. Therefore, a jury could conclude that Mike did
not actually believe Beito was responsible for reporting overdue accounts to the Gorras.
- 45 -

Beito also testified that both overdue accounts were related to routine delays with estate
issues and medical assistance applications, suggesting that the arrearages were normal
occurrences in Westwood’s business and Mike did not honestly believe she was
responsible for allowing the arrearages to accrue.
As for the stated reason of two resident care incidents, the Court similarly finds
that material issues of fact remain. Westwood claims that it terminated Beito in part for
failing to use Wanderguard on the resident that fell in the parking lot.

But Beito

presented evidence that Westwood’s Wanderguard system was not operational because it
did not include a door tester. Accordingly, a jury could conclude that this reason for
termination has no basis in fact. The description of the second incident in which a
resident broke her arm contains sufficient disputed facts regarding the doctor’s order and
the necessary level of assistance required by the resident upon which a jury could
conclude that Mike did not actually believe the incident was due to Beito’s performance
instead of the result of the employee’s conduct who was tasked with assisting the resident
or accidental causes.

Because a jury could reasonably conclude that many of the stated

reasons for Beito’s termination lack a basis in fact or were not honestly considered by
Mike to be offenses warranting termination, a jury could conclude that the stated reasons
as a whole were pretext for unlawful discrimination.

3.

Evidence of Age Discrimination

Finally, Beito has presented circumstantial evidence of comments and practices
that suggest a preference for younger employees, sufficient to satisfy the second step of a
pretext showing for her age discrimination claims. Mike testified that Beito could have
- 46 -

remained working at Westwood until she was 110 if she had been doing her job, “because
she looked good” and “a lot younger” than her age. (M. Gorra Dep. 88:12-16, 89:3-4.) A
reasonable jury could conclude based on this comment that Mike had a preference for
younger employees – or employees that looked young. Additionally, during the beta
testing of Lifestyle Ledger Melby questioned Beito’s ability to learn, made degrading
statements about Beito’s competence, and commented that “younger staff caught on more
quickly” than Beito.

(Beito Dep. 79:4-13.)

Furthermore, Beito testified that Rick

continued to ask her about whether she planned to retire numerous times after she had
informed him that the Gorras would be the first to know if she had such plans. Rick and
his wife also told Beito that it would be “stupid” for Mike to fire her, because she could
file an age discrimination lawsuit.
Although Melby and Rick were not decisionmakers, their comments are still
relevant to the jury’s inquiry. These comments, taken as a whole, would permit a
reasonable jury to conclude that a pervasive attitude of age discrimination – or a
preference for younger employees – existed at Westwood and influenced Mike’s
decision. See Ryther v. KARE 11, 108 F.3d 832, 842-43 (8th Cir. 1997) (finding that a
jury could reasonably conclude that a decisionmaker “formed her judgment about
[plaintiff] on the basis of the discriminatory comments frequently made by” nondecisionmakers, where non-decisionmakers had “frequent discussions” with the
decisionmaker about plaintiff’s “ability to ‘grasp’ some of the ‘newer’ developments at
the station” along with evidence that the decisionmaker “was generally responsive to [the
non-decisionmaker]’s ideas and demands”). It is undisputed that Melby spoke with Mike
- 47 -

frequently about Beito’s alleged performance issues and had also expressed that Beito
had a more difficult time than the younger employees learning to use Lifestyle Ledger. It
is also undisputed that Mike often was responsive to Melby’s ideas and demands as her
criticisms of Beito resulted in written directives. Furthermore, in light of the small staff
at Westwood and Rick’s relationship to Mike, a jury could reasonably infer that Mike
was aware of Rick’s discussions with Beito regarding retirement and her age. Rick’s
persistent questioning about retirement, while not alone sufficient to demonstrate age
discrimination, is an additional piece of evidence from which a jury could conclude that
the company engaged in unlawful discrimination. See Montgomery v. John Deer & Co.,
169 F.3d 556, 560 (8th Cir. 1999) (“[T]he fact that Montgomery was regularly offered
early retirement does not by itself violate the ADEA. . . . However, retirement inquiries
can sometimes be so unnecessary and excessive as to constitute evidence of
discriminatory harassment.”).14

14

Melby’s comment could also be relevant under a cat’s paw theory of discrimination
which is appropriate in “a situation in which a biased subordinate, who lacks decisionmaking
power, uses the formal decisionmaker as a dupe in a deliberate scheme to trigger a
discriminatory employment action.” Qamhiyah v. Iowa State Univ. of Science & Tech., 566 F.3d
733, 742 (8th Cir. 2009) (internal quotation marks omitted). Under this theory “an employer can
be liable, under certain circumstances, where the formal decisionmaker is not the person who
harbored an unlawful motive to terminate the employee.” Id. (internal quotation marks omitted).
In determining whether comments of a subordinate can be attributed to the adverse employment
action the relevant inquiry is whether the decisionmaker “served as the conduit, vehicle, or
rubber stamp by which another achieved his or her unlawful design.” Id. at 745 (alterations and
internal quotation marks omitted). In other words, to proceed on a cat’s paw theory, a plaintiff
must raise a genuine issue of material fact as to whether the subordinate’s discriminatory animus
was a “proximate cause of [plaintiff]’s firing.” Diaz v. Tyson Fresh Meats, Inc., 643 F.3d 1149,
1152 (8th Cir. 2011). Here, Beito has presented sufficient evidence to create a genuine issue of
material fact as to Melby’s influence over Mike in the decision making process, and whether
Melby’s belief that younger employees were better was the proximate cause of Beito’s
termination. For example, the record reflects that Beito worked for Westwood for over twenty(Footnote continued on next page.)

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In addition to the comments, Beito presented evidence that she was replaced as
manager by substantially younger employees. Finally, the record reflects that although
Beito had engaged in much of the alleged misconduct described on Mike’s list of
nineteen reasons as early as the 1990s and many years prior to her termination in 2012
(such as changing her work hours and Westwood’s damage deposit policy), she was not
disciplined for this conduct in any manner until she was terminated in 2012 – when she
was almost two decades older. In light of this evidence, in addition to the comments by
Mike, Melby, and Rick, and the strong evidence of pretext presented, the Court finds that
a reasonable jury could conclude that age was a determinative factor in Beito’s
termination.

Accordingly, the Court will deny Westwood’s motion for summary

judgment.
This case will be placed on the Court’s next available trial calendar.

____________________________________
(Footnote continued.)

two years without a single documented performance-related incident prior to the introduction of
Lifestyle Ledger and Melby to Westwood. Almost immediately after Melby began the beta
testing she repeatedly brought her concerns about Beito to Mike’s attention. In fact, the only
conduct of Beito’s that resulted in written directives from Mike was conduct reported to him by
Melby, and many of the concerns expressly raised by Melby formed the alleged basis of Mike’s
termination decision. Additionally, a jury could conclude that Melby and her belief that Beito
was too old to perform her job, influenced the termination decision because she became
increasingly involved in the operations of Westwood, was appointed interim manager after
Beito’s termination, and was actively involved in hiring the next two managers, suggesting that
Melby had considerable influence in Mike’s decision making. Accordingly, a jury could
properly consider Melby’s statement that younger employees learned more quickly than Beito in
determining whether age was a determinative factor in Beito’s termination.
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ORDER
Based on the foregoing, and all the files, records, and proceedings herein, IT IS
HEREBY ORDERED that Defendant’s Motion for Summary Judgment [Docket
No. 29] is DENIED.

DATED: July 8, 2014
at Minneapolis, Minnesota.

___s/

_____
JOHN R. TUNHEIM
United States District Judge

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