Gergawy v. U.S. Bakery, Inc.
| Decision Date | 09 March 2021 |
| Docket Number | No. 2:19-CV-00417-SAB,2:19-CV-00417-SAB |
| Court | U.S. District Court — District of Washington |
| Parties | MAGDI GERGAWY and ALISA GERGAWY, a married couple, Plaintiffs, v. UNITED STATES BAKERY, INC., d/b/a FRANZ FAMILY BAKERIES, an Oregon Corporation; OCCUPATIONAL HEALTH SOLUTIONS, INC., a Washington Corporation; and TAMI KINNUNEN, an individual; Defendants. |
The Court held a motion hearing in the above-captioned matter on March 4, 2021 via video conference. Plaintiffs were represented by Ryan Best. Defendant United States Bakery ("USB") was represented by Joshua Howard, who presented arguments, and Richard Omata. Defendants Occupational Health Solutions ("OHS") and Tami Kinnunen (collectively, the "OHS Defendants") were represented by Sawyer Margett, who presented arguments, and William Symmes. During the hearing, the Court heard oral argument on the OHS Defendants' Motion for Partial Summary Judgment, ECF No. 54, and USB's Motion Joining the Partial Summary Judgment Motion, ECF No. 65. The Court took the motions under advisement. Having heard from the parties and reviewed the briefing and applicable caselaw, the Court grants the motions.
The following facts are pulled from the parties' respective statements of fact and are, unless otherwise noted, not disputed. All facts and reasonable inferences are construed in Plaintiffs' favor as the nonmoving party. Only the facts relevant to the arguments made in this motion are addressed.
OHS is a certified third-party claims administrator under Washington's self-insured workers' compensation laws. It provides comprehensive occupational health services to employers, including fitness for duty for management, work injury management, disability management, new hire medical screening, and worker's compensation management. Ms. Kinnunen is an employee of OHS; her title is Worker' Compensation Specialist, and she is a certified claims administrator pursuant to WAC 296-15-360. Although Ms. Kinnunen's job sometimes required her to work with OHS employees and USB employees, she was neither a manager nor a supervisor. OHS has never had more than fifteen employees for any twenty-week period in 2018, 2019, or 2020.
Between November 1, 2005, and August 31, 2019, OHS was USB's third-party administrator and managed its worker's compensation claims before the State Department of Labor and Industries ("L&I"). OHS and USB have no common ownership, officers, directors, or employees. The contract between OHS and USB provided that OHS had power of attorney to act on USB's behalf in administering L&I claims.
Plaintiff Magdi Gergawy was hired by Defendant USB in 2003; he has been continuously employed by USB as a baker since that time. On July 9, 2018, Mr.Gergawy suffered an injury at work. USB's third-party administrator, OHS, assigned Ms. Kinnunen to manage Mr. Gergawy's worker's compensation claim for the workplace injury. She worked with Mr. Gergawy and USB to facilitate payment of Mr. Gergawy's doctor's appointments, medication, treatments, diagnostic tests, therapies, and time loss compensation for missed work. She also facilitated payments out of a bank account opened by OHS but funded by USB for the purpose of paying out these claims. For the first time in response to these motions, Mr. Gergawy alleges that these payments were "wages" and that OHS was his employer; he also alleges for the first time that Ms. Kinnuen supervised and controlled the conditions of his work.
In February 2019, Mr. Gergawy's medical provider, Scott Pleines, PA-C, requested that Mr. Gergawy undergo an Independent Medical Examination (IME) to assess the status and cause of Mr. Gergawy's reported cervical and lumbar pain. The examination occurred in April 2019. On May 6, 2019, a workday, Mr. Gergawy's pain was severe. During his shift, he contacted April McDonough, USB's safety coordinator, and she told him to see Mr. Pleines. Mr. Gergawy left work early to see Mr. Pleines. Mr. Pleines placed Mr. Gergawy on modified duty for three weeks and scheduled a follow-up appointment for May 28, 2019. After his appointment, Ms. Kinnunen called Mr. Gergawy and told him to go back to Mr. Pleines's office for a re-evaluation. Ms. Kinnunen then faxed a copy of Mr. Gergawy's IME report, dated April 24, 2019, to Mr. Pleines. Mr. Pleines allegedly reviewed the report and deferred to the examiner's findings on May 6, 2019 at 11:36 a.m.
Mr. Gergawy left Mr. Pleines's office and went to see Ms. McDonough to deliver his provider's recommendation modifying his schedule for three weeks. When he got to Ms. McDonough's office, she observed him hunched over and in pain. She took Mr. Gergawy to the emergency room in a company vehicle so that he could be treated. While in the emergency room, Ms. Kinnunen called Mr.Gergawy to let him know that he had been scheduled for a re-evaluation with Mr. Pleines for the following day.
On May 8, 2019, Ms. Kinnunen drafted and sent a letter to Mr. Gergawy stating that on May 6, Mr. Pleines agreed with the findings in the IME report. The report indicated that Mr. Gergawy was at maximum medical improvement and that no further medical treatment recommendations were appropriate. It also found that Mr. Gergawy's pain appeared to be caused by a preexisting condition and was not related to any alleged work-related injury. On or about May 9, Ms. Kinnunen sent Mr. Gergawy's file and the IME results to L&I so it could evaluate Mr. Gergawy's claim. After reviewing the records, L&I closed Mr. Gergawy's claim on June 12, 2019, and reaffirmed the decision on July 12, 2019. Mr. Gergawy initiated an administrative appeal of L&I's closure of his claim, but he voluntarily dismissed the appeal.
On May 9, before his appointment with Mr. Pleines, Ms. McDonough set Mr. Gergawy a text message stating
During the re-evaluation appointment, Plaintiffs allege Mr. Pleines did not examine Mr. Gergawy and instead gave him a completed APF releasing him to work with no restrictions. He told Mr. Gergawy that his pain was from a kidney stone and this his case would be closed. USB disputes this characterization. It alleges that Mr. Pleines examined Mr. Gergawy, went over the IME and MRI results with him, and informed him that he would defer to the IME results. Mr. Pleines also testified that Mr. Gergawy stated that he had a history of kidney stones and agreed that he was at maximum medical improvement. In addition, USB asserts that multiple medical professionals stated there were no clinical reasons for Mr. Gergawy's self-reported complaints of pain on May 6, 2019.
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Mr. Gergawy's claims of discrimination and retaliation are not wholly relevant to the arguments presented in the instant motions, but are briefly discussed. When Mr. Gergawy returned to work, he alleges his supervisors intensified his workload, refused to accommodate his disabilities, and took away one of his weekend days off. On July 31, 2019, Mr. Gergawy filed an EEOC complaint regarding the conditions and alleged discrimination at USB. He received a right to sue letter on November 27, 2019.
Mr. Gergawy alleges he had requested foreman training from various supervisors over the years, including from Brian Sills, Jim Grantham, Shaun Doty, and Bill Hayes. He alleges he signed up for training several times, both before and after he filed his EEOC complaint, but that he did not receive any training until January 2020, after he filed his EEOC complaint. On March 2, 2020, Mr. Gergawy's previous injury—the one that he alleges went untreated in May 2019—reoccurred at work. He filed another L&I claim and was out until June 14, 2020. USB disputes that Mr. Gergawy's previous injury was not properly treated. USB also argues that he fails to present medical evidence to support such a contention, that his medical records indicate he reached maximum medical improvement, and that he agreed with that assessment. Mr. Gergawy also alleges that USB has not provided Mr. Gergawy with any additional foreman training since he returned.
Mr. Gergawy alleges that he has been retaliated and discriminated against on the basis of his ethnicity, national origin, age, disability, and for filing an EEOC complaint. He alleges that he does not have the authority to work hours outside of his scheduled shifts without the hours first being approved and scheduled by USB. He alleges USB cancelled his medical benefits for fifteen days and that Mr. Gergawy needed the benefits to care for himself, his wife, and their daughter. He alleges no other USB employee had their medical benefits cancelled during that same period of time. Plaintiffs also allege that Ms. Kinnuen called him a "spider"in an email with another OHS employee and that she actively encouraged others to discriminate against him. However, Defendants dispute this characterization, and argue that the objected to email speaks for itself, arguing that—based on context—it is clear the email is about an actual spider. It also objects to the characterization that Ms. Kinnunen discriminated against Mr. Gergawy or encouraged anyone else to do so.
Plaintiffs filed his original complaint on December 4, 2019. They allege claims including (1) retaliation in violation of public policy and wrongful/illegal retaliation; (2) negligent supervision; (3) violations of the state and federal Family Medical Leave Act; and (4) violations of the Age Discrimination in Employment Act, Americans with Disabilities Act, and the Washington Law Against Discrimination for discrimination based on his age, disability, and race/national origin. He generally...
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