Degraw v. Technologies, Case No. 09–4016–RDR.

Decision Date13 October 2010
Docket NumberCase No. 09–4016–RDR.
PartiesTerry DEGRAW, Plaintiff,v.EXIDE TECHNOLOGIES, Defendant.
CourtU.S. District Court — District of Kansas

OPINION TEXT STARTS HERE

David O. Alegria, McCullough, Wareheim & Labunker, P.A., Topeka, KS, for Plaintiff.Michael F. Delaney, Melody L. Rayl, Overland Park, KS, for Defendant.

MEMORANDUM AND ORDER

RICHARD D. ROGERS, District Judge.

Plaintiff has filed an action alleging that defendant violated state law by retaliating against plaintiff for exercising his rights under the State of Kansas workers' compensation statute. Plaintiff also alleges that defendant violated the Family and Medical Leave Act (“FMLA”) by unlawfully retaliating against and interfering with plaintiff's exercise of his FMLA rights. This case is before the court upon defendant's motion for summary judgment.

I. SUMMARY JUDGMENT STANDARDS

Summary judgment is proper if it is demonstrated that the movant is entitled to judgment as a matter of law on the basis of facts to which there is no genuine dispute. The court must determine “whether there is the need for a trial—whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). “Only disputes over facts that might affect the outcome of the suit under the governing law will ... preclude summary judgment.” Id. at 248, 106 S.Ct. 2505. There are no genuine issues for trial if the record taken as a whole would not persuade a rational trier of fact to find for the nonmoving party. Matsushita Elec. Indust. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). The court may not act as the jury and determine witness credibility when it examines the record upon a summary judgment motion. Windon Third Oil and Gas v. Federal Deposit Ins., 805 F.2d 342, 346 (10th Cir.1986) cert. denied, 480 U.S. 947, 107 S.Ct. 1605, 94 L.Ed.2d 791 (1987). The evidence and all reasonable inferences therefrom are construed in the light most favorable to the nonmoving party. Spaulding v. United Transp. Union, 279 F.3d 901, 904 (10th Cir.) cert. denied, 537 U.S. 816, 123 S.Ct. 84, 154 L.Ed.2d 20 (2002).

II. UNCONTROVERTED FACTS

Unless noted otherwise, the following facts are either uncontroverted or shall be considered uncontroverted for the purposes of this memorandum and order.

Plaintiff was hired by defendant on or about August 20, 2001 to perform the job of a “material handler” at defendant's plant in Salina, Kansas. When plaintiff was hired he received instructions regarding defendant's policy for reporting workplace injuries. The physical requirements of the job included: 1) manually handling 5–pound to 80–pound batteries; 2) occasionally (with assistance) lifting batteries weighing between 80 and 120 pounds; 3) moving or carrying wood pallets weighing up to 40 pounds over short distances; and 4) continuous standing, walking or riding a truck twelve hours a day. In 2005, plaintiff signed a job description for the position of senior material handler. The job description stated that a senior material handler should among other tasks: perform all material handler functions; occasionally lift 30 to 40 pounds; and engage in walking, sitting, lifting, bending and twisting.

Plaintiff's medical history shows that plaintiff complained of back pain and missed work at different times over a period of years. Plaintiff had a four-wheeler accident in 2002 which caused some back pain and led plaintiff to miss a few days of work. An x-ray showed mild degenerative change at the L5–S1 vertebra.

Plaintiff also missed five months of work in 2003 because of a hernia operation and a motorcycle accident which happened while he was recovering from the operation.

In January 2005 plaintiff fell from a ladder in his garage and injured his back. He missed a few days of work. In August 2005 plaintiff's doctor—Dr. Bossemeyer—diagnosed plaintiff with left leg numbness secondary to an irritated nerve from a low back strain. He noted that plaintiff had had episodes of low back pain on and off for many years.

Plaintiff saw Dr. Bossemeyer on June 2, 2006 complaining of low back pain and pain radiating into his right leg. Plaintiff did not indicate to Dr. Bossemeyer that there was a specific cause of the pain and did not say that his work activities caused the pain. Dr. Bossemeyer diagnosed plaintiff with possible L5–S1 radiculopathy, prescribed pain medication, and instructed plaintiff to take some time off work.

On June 7, 2006 plaintiff had a CT scan. The radiology report contained the following impression:

A prominent right paracentral disk herniation is ... felt to be present at L4–L5 that measures 1.2 x 0.8 cm and is associated with right nerve root compression and acquired central canal narrowing to 7 mm.

Moderate degenerative disk disease at L5–S1 with moderate to severe narrowing of the disk space and face joint arthropathy. The central canal caliber remains within normal limits but there is right neural foraminal stenosis with right nerve root compression.

Doc. No. 95, Exhibit 11. The radiologist recommended a follow-up MRI to confirm the findings. But, as will be discussed, an MRI was not ordered until December 2006.

Plaintiff had an epidural steroid injection on June 14, 2006 with minimal results. About this time, Dr. Bossemeyer diagnosed plaintiff with degenerative disc disease and placed the following work restrictions upon plaintiff: no pushing/pulling over 25 pounds; no continuous lifting over 25 pounds; no frequent lifting over 25 pounds; no repetitive bending or stooping; no squatting or kneeling; no prolonged standing or working—should be sitting 50% of the time.

On June 21, 2006 plaintiff had a follow-up visit to Dr. Bossemeyer. Plaintiff reported no significant pain and said he wanted to return to work. Dr. Bossemeyer noted that plaintiff's job required him “very intermittently” to lift up to 60 pounds, but for the most part plaintiff lifted 10 or 15 pounds intermittently and drove a forklift. Dr. Bossemeyer wrote that plaintiff could go back to work with no restrictions.

However, plaintiff then traveled by car from Salina, Kansas to Colorado Springs. This aggravated his back pain. When he returned, he saw Dr. Hanson. Dr. Hanson is a physician at the Salina Clinic who is under contract to perform examinations for defendant to determine whether employees on medical leave can return to work. Dr. Hanson had previously seen plaintiff for return to work examinations in 2003 and 2005. On June 26, 2006, Dr. Hanson noted that plaintiff felt he was not capable of returning to work. Dr. Hanson found that plaintiff was having “tremendous discomfort.” Doc. 95, Ex. 13 at p. 5. He determined that plaintiff had degenerative disc disease and told plaintiff that he was released from work until his personal physician (Dr. Bossemeyer) said otherwise.

Plaintiff received a second epidural steroid injection on June 29, 2006. He indicated on a pain history taken at that time that his pain “just began,” not that it was caused by work. He noted that the pain started over two years ago.

Plaintiff saw Dr. Hanson again on July 11, 2006 and reported that his pain was completely gone and he wished to return to work on July 16, 2006. Dr. Hanson approved plaintiff to return to work. Plaintiff did return to work on July 16, 2006.

On August 7, 2006 plaintiff reported to defendant's nurse's station while at work and spoke with Gidget Ramsey, a nurse for defendant. Plaintiff reported that he had pain in his back, perhaps because of working overtime. Plaintiff has testified that he told Ramsey:

“I'm fresh from feeling better from this injury that I'm off of and then they want to put me working sixty, seventy hours a week on jobs that is not even my job ... No wonder, you know, I got pain coming back again.”

Doc. No. 95, Ex. 28 at p. 10 (p. 47 of plaintiff's deposition). Plaintiff has also testified that he asked Ramsey to help him file a work injury report or a workers' compensation claim. We accept this testimony as true for the purposes of this order.

Nurse Ramsey recorded her recollection of the encounter in a memo which states:

[Employee] reports to nurse's station & asks what he can do about his back pain. [Employee] then continues to report that he is tired of working 60 hrs. a week and feels like maybe his job has caused his back pain. Reports that his doctor did not want to release him to return to work but he said he couldn't live of[f] his STD [short-term disability] check and needed to get back to work. [Employee] was seen by Dr. Hanson on 7/11/06 and reported that his pain was completely gone. Dr. Hanson released him to return to work on 7/16/06. [Employee] reports to this nurse that the pain has never gone away and again says working 60 hrs. is crazy and I'm tired of being told that since I have low seniority that it's mandatory that I work overtime. Continues to report that DC has it's own set of rules & tired of it. Instructed [employee] to talk [with] John Pfeiffer about his concern [regarding] the overtime. I then instructed [employee] to fill out an accident report if he felt like his back injury was [due to] his job. [Employee] reported that he will talk [with] John Pfeiffer. Ended the conversation by reminding [employee] to come back to the nurse's station and fill out an accident investigation/incident report if he felt this was a work related injury.

Doc. No. 95, Ex. 17. Plaintiff disputes that Nurse Ramsey told him to fill out a work injury report or did anything other than direct plaintiff to speak to John Pfeiffer. The court accepts plaintiff's version of this matter for the purposes of the motion for summary judgment. Plaintiff did not fill out an injury report, and Ramsey did not fill out an injury report...

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