UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF INDIANA

FORT WAYNE DIVISION

CHELSEY SORAH, )

)

Plaintiff, )

)

v. ) CAUSE NO.: 1:16-CV-291-TLS

)

NEW HORIZONS HOME HEALTHCARE )

LIMITED LIABILITY COMPANY, )

)

Defendant. )

OPINION AND ORDER

This litigation arises out of Plaintiff Chelsey Sorah’s termination from her employment 

with Defendant New Horizons Home Healthcare Limited Liability Company. The Plaintiff

claims that the Defendant violated the Family Medical Leave Act (FMLA), the Americans with 

Disabilities Act (ADA), and the Pregnancy Discrimination Act (PDA) when it terminated her 

while she was on leave. Currently before the Court is the Defendant’s Motion for Summary 

Judgment [ECF No. 21]. The Plaintiff responded to the Defendant’s Motion on June 25, 2018 

[ECF Nos. 23, 24], and the Defendant replied on July 10, 2018 [ECF No. 25].

FACTUAL BACKGROUND

The Plaintiff began working for the Defendant in June 2013, as the Director of Human 

Resources. As part of her job, the Plaintiff was familiar with FMLA, PDA, and ADA 

requirements and regulations, and the Defendant paid for the Plaintiff to attend training courses 

regarding employment-related legal matters. 
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On April 6, 2015, the Plaintiff informed her supervisor, Jessica Pearson, that her 

OB/GYN had ordered her to take bed rest for the rest of her pregnancy, and she began taking 

leave. While the Plaintiff was on leave, the Defendant provided two pay advances to her at her 

request, totaling $800. Additionally, Jerome Metz, one of the owners of the Defendant, sent the 

Plaintiff a text telling her that she would have the same position she had after she returned from 

her leave. On May 25, 2015, the Plaintiff gave birth. The Plaintiff continued taking leave. Had 

the Plaintiff began taking FMLA leave on April 6, 2015, her entitlement would have ended on 

June 29, 2015. 

On June 30, 2015, two employees of the Defendant informed Jessica Pearson that a client 

claimed the Plaintiff assisted the client in committing fraud to pass a medication audit. The 

Defendant investigated and concluded there was enough evidence to terminate the Plaintiff. The 

Defendant mailed a termination letter, citing the medication fraud as the reason for the Plaintiff’s 

termination, on July 6, 2015. 

On July 9, 2015, the Plaintiff filed for unemployment. The Defendant contested the 

Plaintiff’s claim, and Jessica Pearson provided the following explanation for the Plaintiff’s 

termination: “[e]mployee has been out for a period over 60 days. She never provided agency 

with doctor slips to be off work, nor did she file FMLA. She never provided a return to work 

date. Position needed to be taken care of. Not personal.” Jessica Pearson testified that the 

Plaintiff was, at that point, terminated for FMLA leave and not for the medication fraud.

On July 17, 2015, James J. Metz, another owner of the Defendant, mailed the Plaintiff a 

second Notice of Termination based on an undocumented leave of absence. Specifically, the 

letter stated that the Plaintiff was terminated “because of your failure to return to work following 

your authorized 12-week maternity leave that ended June 29, 2015.” James Metz testified in his 
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deposition that he sent the second letter because an employee had informed him that the Plaintiff 

was planning to return to work around July 22, 2015, and he wanted her to know her 

employment had been terminated. The Plaintiff alleges that she spoke to Jessica Pearson and 

Jerome Metz after her termination, and that Jessica Pearson told her the Defendant was lying, 

and asking Jessica Pearson to lie, about the reasons for the Plaintiff’s termination. 

In its response to the Plaintiff’s written discovery requests, the Defendant cited another 

reason for the Plaintiff’s termination. The Defendant alleges that, during the investigation of the 

medication audit fraud, it discovered that the Plaintiff was working caregiver shifts in place of 

another of the Defendant’s employees, Mary Beth Hamilton. The Plaintiff, however, alleges that 

the Defendant already knew she worked these shifts, and identifies Jessica Pearson’s testimony 

that “I think at one time maybe I did say yes and go ask Jerome” as support for her allegation. 

The Plaintiff’s name does not appear on the schedule as a caregiver, and she falsified her name 

on medical records. Mary Beth Hamilton would pay the Plaintiff in cash out of the paycheck she 

received from the Defendant. The Defendant reported the incident to the State of Indiana, which 

concurred that the Plaintiff’s actions constituted Medicaid fraud. 

At no point during the Plaintiff’s leave did the Defendant communicate to her when her 

FMLA-qualified leave began, and thus when the Plaintiff would be expected to return to work. 

According to Jessica Pearson, the Plaintiff’s supervisor, the Defendant’s FMLA protocol was to 

“request a doctor’s order;” because the employees were responsible for procuring FMLA 

paperwork themselves. The Defendant never sent any paperwork regarding FMLA to the 

Plaintiff. In fact, Jessica Pearson testified that the Plaintiff was not on FMLA leave, because 

there was no paperwork documenting her absence. The Defendant did request that the Plaintiff 
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provide a certification pertaining to her leave, and she provided two notes from her healthcare 

provider. The Plaintiff remained in contact with the Defendant during her leave. 

STANDARD OF REVIEW

Summary judgment is proper where the evidence of record shows that there is no genuine 

issue of material fact and that the moving party is entitled to judgment as a matter of law. 

Celotex Corp. v. Catrett, 477 U.S. 317, 322–23 (1986). The moving party bears the initial burden 

of informing the court of the basis for its motion and identifying those portions of the record it 

believes demonstrate the absence of a genuine issue of material fact. Id. at 323. The burden then 

shifts to the non-movant to “go beyond the pleadings” to cite evidence of a genuine factual 

dispute precluding summary judgment. Id. at 324. “[A] court has one task and one task only: to 

decide, based on the evidence of record, whether there is any material dispute of fact that 

requires a trial.” Waldridge v. Am. Heochst Corp., 24 F.3d 918, 920 (7th Cir. 1994). If the nonmovant does not come forward with evidence that would reasonably permit the finder of fact to 

find in its favor on a material issue, then the Court must enter summary judgment against it. Id.

ANALYSIS

A. The Plaintiff’s FMLA Claims

The Plaintiff raises two FMLA claims: retaliation and interference. “The difference 

between a retaliation and interference theory is that the first ‘requires proof of discriminatory or 

retaliatory intent while [an interference theory] requires only proof that the employer denied the 

employee his or her entitlements under the Act.’” See Shaffer v. Am. Medical Ass’n, 662 F.3d 
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439, 443 (7th Cir. 2011) (citing Goelzer v. Sheboygan Cty., Wis., 604 F.3d 987, 993 (7th Cir. 

2010)).

1. The Plaintiff’s FMLA Retaliation Claim

An employer cannot use an employee taking FMLA leave as a negative factor in 

termination. See Pagel v. TIN Inc., 695 F.3d 622, 629 (7th Cir. 2012) (citing Breneisen v. 

Motorola, Inc., 512 F.3d 972, 978 (7th Cir. 2008)); see also 29 U.S.C. § 2615(a)(2). “To succeed 

on a retaliation claim, the plaintiff does not need to prove that ‘retaliation was the only reason for 

her termination; she may establish an FMLA retaliation claim by ‘showing that the protected 

conduct was a substantial or motivating factor in the employer’s decision.’” Goelzer, 604 F.3d at 

995 (citing Lewis v. Sch. Dist. # 70, 523 F.3d 730, 741–42 (7th Cir. 2008) (emphasis in 

original)).

As with other employment statutes,1to prove that her termination was retaliatory for 

taking protected leave, the Plaintiff must establish that (1) she engaged in a protected activity, (2) 

the Defendant took an adverse employment action against her, and (3) there is a causal 

connection between the two. See Cracco v. Vitran Express, Inc., 559 F.3d 625, 633 (7th Cir.

2009). It is undisputed that the Plaintiff can establish the first two points. To establish the third, 

the Plaintiff must present enough evidence for a reasonable fact-finder to conclude she was 

terminated, at least in part, because she took FMLA leave. See Ortiz v. Werner Enterprises, Inc., 

834 F.3d 760, 765 (7th Cir. 2016). Such evidence might occasionally include direct admissions, 

 

1 Claims of retaliatory discharge under the FMLA are analyzed in the same manner as retaliatory 

discharge claims under other employment statutes, such as Title VII and the ADA. See Buie v. 

Quad/Graphics, Inc., 366 F.3d 496, 503 (7th Cir. 2004); see also Malin v. Hospira, Inc., 762 F.3d 552, 

562 (7th Cir. 2014) (stating that the “same model of proof” applied to both the plaintiff’s “Title VII and 

FMLA retaliation claims”).
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but will more commonly rely on circumstantial evidence, including suspicious timing and 

evidence the employer offered a pretextual reason for an adverse employment action. See 

Hobgood v. Ill. Gaming Bd., 731 F.3d 635, 643–44 (7th Cir. 2013) (citations and quotations 

omitted). If the Plaintiff provides enough evidence, “the case must be tried unless the defendant 

presents unrebutted evidence that he would have taken the adverse employment action against 

the plaintiff even if he had no retaliatory motive.” See Burnett v. LFW Inc., 472 F.3d 471, 481 

(7th Cir. 2006) (citing Stone v. City of Indianapolis Pub. Utils. Div., 281 F.3d 640, 644 (7th Cir.

2002)). 

Here, the Plaintiff has presented several direct admissions of illegal retaliation. First, 

Jessica Pearson testified that “[the Plaintiff] [was] terminated over FMLA,” that her supervisors, 

James and Jerome Metz, told her “that FMLA was where we’re going.” Second, to the Indiana 

Department of Workforce Development (IDWD), the Defendant stated: “[e]mployee has been 

out for a period over 60 days. She never provided agency with Doctor slips to be off work. Nor 

did she file FMLA . . . position needed to be taken care of. Not personal.” Both statements could 

suggest, to a reasonable factfinder, that the Defendant considered the Plaintiff’s protected leave 

in terminating her. Further supporting the Plaintiff’s claim are the Defendant’s shifting 

explanations for the Plaintiff’s termination. First, the Defendant terminated the Plaintiff for her 

actions related to the medication audit, then for taking leave, then for taking leave beyond that 

provided by the FMLA, and finally for working caregiver shifts under another employee’s name. 

A reasonable factfinder could conclude that the Defendant considered the protected leave to 

which Plaintiff was entitled as at least a substantial factor in terminating her. The Plaintiff has 
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presented evidence that she was terminated, at least in part, because she took leave.2 Cf. Preddie 

v. Bartholomew Consolidated Sch. Corp., 799 F.3d 806, 819 (7th Cir. 2015)

The Defendant argues that its explanations are not “shifting” but “additional.” See Def.’s 

Reply to Resp. to Mot., ECF No. 25, p. 7. The Defendant also emphasizes that the Plaintiff does 

not deny that she worked the shifts under another caregiver’s name. Id. at 5. The Defendant 

concludes that therefore, its “decision to terminate [the Plaintiff] was legitimate, 

nondiscriminatory, and just.” Id. But the explanations are shifting. The Defendant says it learned 

of both types of fraudulent conduct between June 30, 2015, and July 6, 2015. Yet, despite three 

opportunities to do so, in the first termination letter, the paperwork submitted to the IDWD, and 

the second termination letter, the Defendant did not state this explanation. The disconnect

between the Defendant’s knowledge of the conduct, and its citation of the conduct as a reason for 

termination, could allow a reasonable jury to interpret the Defendant’s explanation as pretext. Cf. 

Donley v. Stryker Sales Corp., — F.3d —, 2018 WL 4957196, at *3 (7th Cir. Oct. 15, 2018); see 

also Gable v. Mack Trucks, Inc., 185 F. Supp. 3d 1055, 1061–62 (N.D. Ill. 2015) (citing 

Loudermilk v. Best Pallet Co., LLC, 636 F.3d 312, 315 (7th Cir. 2011) (noting that “an employer 

who advances a fishy reason takes the risk that disbelief of the reason will support an inference 

that it is a pretext for discrimination”)), and Boumehdi v. Plastag Holdings, LLC, 489 F.3d 781, 

792 (7th Cir. 2007). 

The Defendant argues that, regardless of the evidence of retaliatory motive, it would have 

terminated the Plaintiff either for (1) the Plaintiff’s actions during the medication audit, or (2) her 

 

2 The Defendant has also presented evidence that it supported the Plaintiff’s leave and expected her to 

return. For example, advancing pay to the Plaintiff and the text message saying she would have the same 

position plus more both suggest the Defendant expected the Plaintiff to return. However, given the 

Plaintiff’s evidence, the Court cannot say that no reasonable factfinder could believe the Plaintiff’s 

explanation over the Defendant’s, and thus summary judgment is inappropriate. 
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working shifts under Mary Beth Hamilton’s name.3 However, testimony calls both nonretaliatory reasons into question. The Plaintiff testified that Jessica Pearson told her that she, 

Pearson, was encouraged to lie about the reason for the Plaintiff’s termination. The Plaintiff also 

testified that the Defendant knew she worked shifts under another’s name. Jessica Pearson 

testified that “the Plaintiff was no longer terminated over the medication. Now she’s terminated 

over FMLA,” and that the Defendant did at one time approve the Plaintiff’s working another 

employee’s shifts. 

Circumstantial evidence also rebuts the Defendant’s claim that it would have terminated 

the Plaintiff for nonretaliatory reasons. First, on the IDWD form, the Defendant states that it 

offered her a position as a caregiver. Offering the Plaintiff a position as a caregiver is not 

consistent with firing the Plaintiff for behavior while acting as a caregiver one week prior. 

Second, the Defendant sent the Plaintiff two termination letters. In addition to shifting the 

explanation, the Defendant’s second letter implies that the Defendant was still holding the 

Plaintiff’s position open, despite having cause to fire her for over two weeks. That the Defendant 

still felt the need to fire the Plaintiff almost two weeks after firing her initially belies its 

statement that the Plaintiff would have been fired solely on the basis of the fraudulent conduct. If 

the Defendant considered the Plaintiff fairly and completely terminated for her actions in 

connection with the medication audit, a reasonably factfinder might ask why it sent a second 

letter, with yet another explanation.

Because the Plaintiff has presented evidence that the Defendant fired her, at least in part, 

because she took FMLA leave, which rebuts the Defendant’s claim that it would have fired her 

 

3 The Defendant discusses this explanation as both firing the Plaintiff for Medicare fraud and other 

employer policy violations, and for FMLA fraud, as she could apparently work while out on leave. The 

framing of the explanation does not impact its analysis as pretextual. 
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regardless, the Defendant’s Motion for Summary Judgment on the FMLA retaliation claim is 

denied. 

2. The Plaintiff’s FMLA Interference Claim

To establish a claim of interference under the FMLA, the Plaintiff must establish: (1) she 

was eligible for the FMLA’s protections; (2) her employer was covered by the FMLA; (3) she 

was entitled to take leave under the FMLA; (4) she provided sufficient notice of her intent to 

take leave; and (5) her employer denied her FMLA benefits to which she was entitled. See 

Goelzer., 604 F.3d at 993. The parties agree that the Plaintiff has established all factors except 

that the Defendant denied her FMLA benefits to which she was entitled. 

The Plaintiff argues that she did not receive adequate notice of her FMLA entitlement. 

The Defendant does not dispute that it failed to provide the notice required by the regulations. 

However, a technical violation of the FMLA regulations will not give rise to liability unless the 

employee was prejudiced. See Franzen v. Ellis Corp., 543 F.3d 420, 462 (7th Cir. 2008) (citing 

Ragsdale v. Wolverine World Wide Inc., 535 U.S. 81, 89 (2002)). The Plaintiff fails to establish 

that she was prejudiced by the Defendant’s technical violation. The Plaintiff did, in fact, receive 

twelve weeks of unpaid leave. She testified that the FMLA notice would not tell her anything she 

did not already know. Given that the Plaintiff “knew her rights under [the] FMLA,” and received 

her full leave entitlement despite the Defendant’s failures, the Plaintiff cannot support a claim 

that the Defendant interfered with her FMLA rights by failing to provide her adequate notice.4

 

4 The Plaintiff is correct that an employer may provide more than the required twelve weeks of leave. 

However, terminating an employee for taking more than the protected leave is not forbidden by the 

FMLA, and so the point is not relevant here. The Plaintiff has not presented evidence that, because the 

Defendant failed to provide her the requisite notice, she believed her protected leave extended beyond 

June 29, 2015. 
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But the Defendant did interfere with another of the Plaintiff’s entitled benefits: 

reinstatement. See Simpson v. Office of the Chief Judge of the Cir. Ct. of Will Cty., 559 F.3d 706, 

712 (7th Cir. 2009) (“Firing an employee to prevent her from exercising her right to return to her 

prior position can certainly interfere with that employee’s FMLA rights.”). An employee’s right 

to reinstatement is not absolute, and the employer may present evidence to show that the 

employee would have been fired regardless of taking leave, which the employee must overcome 

to survive summary judgment. See Pagel, 695 F.3d at 629 (citing Cracco, 559 F.3d at 636).

However, as discussed in connection with the Plaintiff’s FMLA retaliation claim, the Plaintiff 

has overcome the Defendant’s evidence that she would have been fired regardless of taking 

leave. Thus, the Defendant’s Motion for Summary Judgment on the Plaintiff’s FMLA 

interference claim is denied. 

B. The Plaintiff’s PDA and ADA Claims

The Plaintiff claims that the Defendant discriminated against her because of her 

pregnancy, in violation of Title VII and the Pregnancy Discrimination Act.5 As with her 

protected status as an employee taking FMLA leave, the question is whether a reasonable 

factfinder could conclude that the Plaintiff’s pregnancy caused the Plaintiff’s termination. See 

Owens v. Old Wis. Sausage Co., 870 F.3d 662, 666–67 (7th Cir. 2017); see also Ortiz, 834 F.3d 

at 765. 

The Defendant argues that the Plaintiff has not presented any evidence that specifically

links her termination to her pregnancy rather than her FMLA leave. The Plaintiff, in place of 

 

5 The PDA specifies that “Title VII’s prohibition against sex discrimination applies to discrimination 

‘because of or on the basis of pregnancy, childbirth, or related medical conditions.’” Young v. United 

Parcel Serv., Inc., 135 S. Ct. 1338, 1345 (2015) (quoting 42 U.S.C. § 2000e(k)). 
11

evidentiary support, argues that because she only took the leave because she was pregnant, and 

she has established enough for a factfinder to reasonably conclude she was terminated in part 

because of her leave, her PDA claim must survive summary judgment. See Pl.’s Resp. to Mot., 

ECF No. 23, at p. 21 (“[B]ecause said leave was due to [her] pregnancy, [the Plaintiff] has 

presented sufficient direct evidence of a causal connection between her pregnancy-related leave 

and the termination of her employment.”). 

The case law does not support the Plaintiff’s argument. The PDA protects against 

discrimination based on pregnancy and its related conditions, so unless the Plaintiff can establish 

that she was terminated for being pregnant or because her leave was pregnancy-based, and not 

just for taking leave, this claim cannot survive summary judgment. See Morgan v. SVT, LLC, 724

F.3d 990, 995 (7th Cir. 2013). The Plaintiff has not presented any evidence that she was 

terminated for being pregnant. The Plaintiff provides no link between her pregnancy and her 

termination; for instance, she has not presented any comments from the Defendant about 

pregnancy, or pointed to individuals who were not pregnant and were treated better, or any of the 

other standard evidence for such linkage. See, e.g., McKinney v. Office of Sheriff of Whitley Cty., 

866 F.3d 803, 807 (7th Cir. 2017). While the evidence that the Defendant’s reason for firing the 

Plaintiff was pretextual would apply under the PDA’s framework, the stated reason must be a 

pretext for the illegal reason of pregnancy discrimination – and the Plaintiff has not established 

that the illegal reason had anything to do with her pregnancy. Hence, the Plaintiff has failed to 

demonstrate that a material fact exists with respect to whether she was impermissibly terminated 

due to her pregnancy, and therefore her PDA claim cannot survive summary judgment.
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The Plaintiff’s ADA claim fails for the same reason: even assuming she qualified as an 

individual with a disability,6the Plaintiff has presented no evidence that her firing had anything 

to do with her disability as distinct from her taking leave. Cf. Rowlands v. UPS – Fort Wayne, 

901 F.3d 792, 801–02 (7th Cir. 2017). Again, although a reasonable factfinder might conclude 

that the Defendant’s explanation for the Plaintiff’s termination was pretextual, the Plaintiff has 

not presented any evidence that it was a pretext for disability discrimination. 

CONCLUSION

For the reasons stated above, the Court GRANTS the Defendants’ Motion for Summary 

Judgment [ECF No. 21] as to the Plaintiff’s claims under the Pregnancy Discrimination Act and 

the Americans with Disabilities Act, but DENIES the Motion as to the Plaintiff’s claims under 

the Family and Medical Leave Act. The Final Pretrial Conference and Trial dates will be set by 

separate entry. 

SO ORDERED on November 7, 2018.

s/ Theresa L. Springmann 

CHIEF JUDGE THERESA L. SPRINGMANN

UNITED STATES DISTRICT COURT

 

6 The Court makes no ruling on whether the Plaintiff would so qualify.