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Erica Selshtut v. Northwest Home Care

April 5, 2012

ERICA SELSHTUT, PLAINTIFF,
v.
NORTHWEST HOME CARE, INC., ET AL., DEFENDANTS.



The opinion of the court was delivered by: Milton I. Shadur Senior United States District Judge

MEMORANDUM OPINION AND ORDER

Erica Selshtut ("Selshtut") has sued her former employers, defendants Northwest Home Care, Inc. ("Northwest") and Aris Home Health, Inc. ("Aris"), under the Family Medical Leave Act ("FMLA," 29 U.S.C. §§2601 to 2654),*fn1 asserting that they failed to reinstate her upon her request to return from FMLA leave. Selshtut has moved for partial summary judgment under Fed. R. Civ. P. ("Rule") 56, and the parties have proceeded in accordance with this District Court's LR 56.1.*fn2 For the reasons stated here, the Rule 56 motion is denied in its entirety.

Summary Judgment Standard

Every Rule 56 movant bears the burden of establishing the absence of any genuine issue of material fact (Celotex Corp. v. Catrett, 477 U.S. 317, 322--23 (1986)).*fn3 For that purpose courts consider the entire evidentiary record and must view all of the evidence and draw all inferences from that evidence in the light most favorable to nonmovants (Egan Marine Corp. v. Great Am. Ins. Co. of N.Y., 665 F.3d 800, 811 (7th Cir. 2011)). But a non-movant must produce more than "a mere scintilla of evidence" to support the position that a genuine issue of material fact exists and "must come forward with specific facts demonstrating that there is a genuine issue for trial" (Carmichael v. Vill. of Palatine, Ill., 605 F.3d 451, 460 (7th Cir. 2010), quoting Wheeler v. Lawson, 539 F.3d 629, 634 (7th Cir. 2008)). As Payne v. Pauley, 337 F.3d 767, 772-73 (7th Cir. 2003) has explained:

[T]he Federal Rules of Civil Procedure require the nonmoving party to "set forth specific facts showing that there is a genuine issue for trial." Fed. R. Civ. P. 56(e). Conclusory allegations, unsupported by specific facts, will not suffice.*fn4

Ultimately summary judgment is warranted only if a reasonable jury could not return a verdict for the non-movant (Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986)). What follows is a summary of the relevant facts, viewed of course in the light most favorable to nonmovants Northwest and Aris.

Factual Background

Northwest provides home health care services in Illinois through direct service employees ("Service Employees"), and it employed 50 or more people at all times relevant to the Complaint (S. St. ¶¶4, 6). Northwest is required to maintain documentation supporting each hour of service provided under the terms of its provider service agreement with the Illinois Department of Aging and Division of Rehabilitation Services of the Illinois Department of Human Services (D. St. ¶52). To qualify for reimbursement from either department, each timesheet must be signed by the Northwest client, must correctly state the number of hours and time of service, must be free from unauthorized alterations and must be signed by a supervisor verifying the accuracy of the timesheet (id. ¶53).

Elena Rom ("Rom") was Northwest's owner, corporate secretary and agency administrator at all relevant times and was responsible for hiring, firing and determining the salaries for all Northwest employees (S. St. ¶7). On June 23, 2009 Rom hired Selshtut as a receptionist and administrative assistant for Northwest and promoted her to the position of Home Care Supervisor approximately three months later (id. ¶¶8-9). Selshtut's duties as Home Care Supervisor included these things among others: monitoring the provision of client services, preparing service calendars and schedules for Service Employees, answering client questions, supervising and evaluating the performance of Service Employees, monitoring billing documentation such as employee timesheets, conducting in-home client visits, assisting in the hiring of new Service Employees and preparing monthly reports on active clients (id. ¶10).

Aris was formed in January 2010,*fn5 and it began performing all of Northwest's scheduling, compliance monitoring and data management services in March (S. St. ¶¶3, 15; D. St. ¶55). Rom is an owner of Aris and is responsible for hiring, firing and determining salary amounts for all Aris employees (S. St. ¶11). Aris and Northwest share the same office and have centralized business operations and labor relations (id. ¶¶12-13). In March Rom informed Selshtut and Northwest's other non-Service Employees (collectively the "Office Staff") that all Office Staff personnel would in the future be paid by Aris (id. ¶17). Thereafter the Office Staff continued to manage and control Northwest's operations (id. ¶18).

On March 3 Selshtut was promoted to Head Home Care Supervisor (S. St ¶19). She continued to perform all her former duties but also took on management obligations (id. ¶¶20-21). To minimize the risk of data entry errors on time sheets, the Office Staff was responsible for comparing data entered in compliance reports with that entered in an electronic database (D. St. ¶60). If the data did not match, one of Selshtut's duties as Head Home Care Supervisor was to locate and eliminate any errors by manually comparing the data entered in the compliance reports and database with the original timesheets (id. ¶61).

On March 21 Selshtut received five peer reviews, two of which contained negative comments about her inappropriate language and dress, the level of her time management skills and her failure to adhere to documentation policies concerning timesheets, among other things (D. St. Ex. 3 to Ex. 1). Rom discussed the peer reviews with Selshtut the same day (D. St. ¶66). In July Selshtut informed Rom that she was pregnant (S. St. ¶22). Rom personally approved Selshtut's plan to take FMLA leave after the birth and never voiced any dissatisfaction with Selshtut's plan (D. St. ¶83). FMLA leaves are routinely granted to Aris's employees, the absolute majority of whom are female (id. ¶84).

On August 20 Selshtut became Aris' State Coordinator*fn6 and Cheryl Aguirre ("Aguirre") took over as Head Home Care Supervisor (D. St. ¶71). On September 8 Olena Izotova ("Izotova"), who worked in Northwest's payroll department, informed Rom that Selshtut had been changing the data in the electronic database to match the compliance reports without consulting the original timesheets -- contrary to Defendants' policies and Rom's explicit instructions -- and that Selshtut lied about doing so when confronted (D. St. Ex. 3 ¶¶37-44). As a result Rom issued a written warning to Selshtut and asked her to submit a written explanation of her conduct (id. Ex. 5 to Ex. 1; D. St. ¶74). Selshtut signed the written warning and dated her signature September 10 (D. St. Ex. 5 to Ex. 1).

Defendants and Selshtut disagree about what happened next. According to defendants, Rom presented the written warning to Selshtut on September 8 and required that she bring the written explanation of her misconduct to work on September 9 (D. St. ¶74). When Selshtut appeared at work without the explanation the next day, defendants claim that Rom terminated her for failure to comply with internal record management procedures and to provide an explanation of her misconduct as requested (id. ¶¶75-76). Selshtut admits that she received the written warning concerning her failure to reconcile the timesheets properly and that she failed to bring a written explanation of her misconduct on ...


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