Gergawy v. U.S. Bakery, Inc.

Decision Date16 February 2021
Docket NumberNo. 2:19-CV-00417-SAB,2:19-CV-00417-SAB
CourtU.S. District Court — Eastern District of Washington
PartiesMAGDI 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.
ORDER DENYING PLAINTIFFS' MOTION FOR PARTIAL SUMMARY JUDGMENT AS TO DEFENDANT USB'S AFFIRMATIVE DEFENSES

Before the Court is Plaintiffs' Motion for Partial Summary Judgment as to Defendant United States Bakery's Affirmative Defenses, ECF No. 50. Plaintiffs are represented by Ryan Best, Jacob Mark, and Michael Merkelbach. Defendant United States Bakery ("USB") is represented by Joshua Howard and Richard Omata. Defendant Occupational Health Services ("OHS") and Ms. Kinnunen were not party to this motion and did not participate in this briefing. The motion was considered without oral argument.

Plaintiffs argue that the Court should grant summary judgment in their favor and dismiss all of USB's affirmative defenses as pled in their amended answer to the First Amended Complaint. They argue that USB's affirmative defenses are supported only by unsubstantiated and self-serving statements, and that they have not and cannot introduce evidence sufficient to back up their defenses. Plaintiffs also request the Court issue an order affirmatively declaring that the First Amended Complaint states claims that would survive a Rule 12(b)(6) motion and that Mr. Gergawy was "disabled" during the period of his workplace injuries. Defendant USB opposes the motion. Having reviewed the briefing and the applicable caselaw, the Court denies the motion.

Facts

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 Defendant USB's favor as the nonmoving party. Only the facts relevant to the arguments made in this motion are addressed.

Plaintiff Magdi Gergawy was hired by Defendant USB in 2003; he has been continuously employed by USB since that time. On July 9, 2018, Mr. Gergawy suffered an injury at work. USB's third-party administrator, OHS, assigned Defendant Tami Kinnunen ("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. 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 leftwork 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 on May 9, 2019.

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 the Washington Department of Labor and Industries ("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 "[y]our doctor has already agreed with theIME. When you see him today to discuss, if you plan on returning to work sooner than the 27th, you still need a note from him releasing you."

At his 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.

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. However, USB disputes this allegation. It contends that any change in workload was felt by all USB employees as the result of an increase in production requirements and the transfer of additional product to USB's Spokane location. It also contends that Mr. Gergawy admits he never requested an accommodation for his disability and was able to do his job without an accommodation. Finally, it disputes that Mr. Gergawy's Sunday day off were "taken away" because the additional hours were scheduled at his request and because USB had a need for an oven operator on Sundays. 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 untilJanuary 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. USB disputes this, instead asserting that Mr. Gergawy did not express interest in being trained as a foreman until after he filed his EEOC complaint and that he only ever signed up for training once. It asserts that the dates relied upon by Plaintiffs to support this claim were later corrected by the witness. USB also disputes that Mr. Gergawy has not been offered any additional foreman training since he returned to work. It alleges Brian Sills approached Mr. Gergawy and asked whether he was interested in receiving training because a swing-shift foreman position had opened up; he alleges Mr. Gergawy declined the offer because he did not want the position. It alleges Mr. Gergawy was approached again and encouraged to sign up for training on December 2, 2020, and that training will continue as scheduling permits.

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. USB objects to these facts, and asserts that USB and its supervisors did not subject Mr. Gergawy to any discriminatory behavior and thatMr. Gergawy does not point to any specific alleged discriminatory acts to support this claim. USB disputes that Mr. Gergawy's medical benefits were cancelled for 15 days; instead, it alleges that it was caused by an administrative error in how his FMLA leave was classified. It alleges the error was corrected within one business day of notification and that benefits were retroactively administered so there would be no gaps in coverage. It also disputes that no other benefits were cancelled during the same period because Plaintiffs did not specify what the "period of time" was for it to determine whether anyone else had benefits cancelled.

Procedural History

Plaintiffs filed his original complaint on December 4, 2019. T...

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