Gergawy v. United States Bakery, Inc.

Decision Date08 February 2022
Docket Number2:19-CV-00417-SAB
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.
CourtU.S. District Court — District of Washington


Stanley A. Bastian, Chief United States District Judge.

Before the Court are Defendants Tami Kinnunen and Occupational Health Solutions, Inc.'s Motion for Summary Judgment, ECF No. 116, and Motion for Sanctions or for a Show Cause Hearing, ECF No. 149; and Defendant United States Bakery's Motion for Summary Judgment, ECF No. 122, and Motion to Strike Declaration in Opposition to Motion for Summary Judgment, ECF No. 158.

On September 2, 2021, the Court heard oral argument by videoconference. ECF No. 172. On October 28, 2021, the Court considered further argument on the motions and conducted a show cause hearing in Spokane, Washington. ECF Nos 179, 180. Plaintiffs Magdi and Alisa Gergawy are represented primarily by Ryan M. Best. Defendant United States Bakery is represented by Richard J. Omata and Joshua M. Howard. Defendants Tami Kinnunen and Occupational Health Solutions Inc. are represented by William M. Symmes and Sawyer R Margett.

The Court has reviewed the briefing and applicable caselaw, has heard from counsel, and is fully informed. The Court first strikes the declaration of Magdi Gergawy under the sham affidavit rule and as a sanction to Plaintiffs' counsel Ryan Best for filing fake evidence. Second, the Court finds that Defendants are entitled to judgment as a matter of law on all of Plaintiffs' claims, and summary judgment is therefore granted in their favor. Notwithstanding these conclusions, the Court also sanctions Mr. Best for misrepresenting facts and evidence by dismissing the action. Accordingly, all pending motions are granted.

I. Procedural History

Defendant United States Bakery, Inc. and Defendants Tami Kinnunen and Occupational Health Solutions, Inc. filed their respective Motions for Summary Judgment on June 29, 2021. ECF Nos. 116, 122. On August 3, 2021, Defendant United States Bakery, Inc. filed a Motion to Strike Declaration in Opposition to Motion for Summary Judgment. ECF No. 158. The remaining defendants filed a Motion for Sanctions or for a Show Cause Hearing the same day. ECF No. 149.

II. Facts

The following facts originate from the parties' respective Statements of Material Facts. ECF Nos. 117, 123, 138, 145, 153, 159. For the reasons discussed below, factual assertions deriving from Magdi Gergawy's Declaration in Opposition to Defendants' Motions for Summary Judgment, ECF Nos. 136, are stricken.[1] Although the facts are construed in favor of Plaintiffs where a reasonable juror could interpret the evidence in their favor, the Court finds that there are no material disputes of fact that preclude summary judgment.

A. Employment at United States Bakery

Since 2003, Plaintiff Magdi Gergawy has been employed by Defendant United States Bakery, doing business as Franz Family Bakeries (USB). Defendant Occupational Health Services (OHS) was the third-party workers' compensation claims administrator for USB until August 2019. Defendant Tami Kinnunen is a workers' compensation specialist employed by OHS (collectively, “OHS Defendants). Mr. Gergawy was never an employee of OHS.

USB is a family bakery that has operated since 1906. Production at the Spokane, Washington bakery is divided between a bread line and bun line. There are nine skills on the bread line: (1) production foreperson, (2) sponger, (3) mixer, (4) mixer helper, (5) divider, (6) pan stacker, (7) oven operator, (8) wrap foreperson, and (9) wrapper. There are eight similar skills on the bun line. The bread and bun line positions are in a bargaining unit represented by a labor union. Under the applicable Collective Bargaining Agreement (“CBA”), the foreperson positions are appointed, and the remaining jobs are considered “bid” jobs that are awarded based on seniority and qualifications. Forepeople at USB do not have the authority to hire, fire, demote, promote, or grant or deny Federal Medical Leave Act (“FMLA”) leave. They can, however, send workers home early, alter when workers are given breaks, and make workers' jobs more physically intensive by assigning specific jobs. Forepeople also have more opportunity to work overtime than bid workers.

There are significant differences between the skills and qualifications required to become a “wrap” foreperson versus a “production” foreperson. To qualify as a wrap foreperson, employees must only be proficient in the wrapper position and trained to complete wrap foreperson paperwork. In contrast, to qualify as a production foreperson, employees must be proficient in all the remaining production bid jobs on the bun or bread line and be trained to complete production foreperson paperwork. For example, a bread production foreperson must learn all the positions in the mixing room-which consists of sponger, mixer, and mixer helper. It is undisputed that Mr. Gergawy never completed training in the mixing room.

In the present action, Mr. Gergawy asserts claims against Defendant USB for (1) negligent supervision; (2) violations of the Family Medical Leave Act; and (3) violations of the Washington Law Against Discrimination, Age Discrimination in Employment Act, Americans with Disabilities Act, and Title VII of the Civil Rights Act of 1964. Specifically, Mr. Gergawy contends that Defendant USB failed to train him for the production foreperson position due to his disability, age, race, and/or national origin, and Defendant USB failed to provide reasonable accommodations for his disability. Mr. Gergawy also pleads causes of action against OHS Defendants for (1) unlawful interference with his workers' compensation claim; and (2) violation of the Consumer Protection Act. As for the purported unlawful acts of OHS Defendants, Mr. Gergawy asserts that Defendant Tami Kinnunen discriminated against him based on the disposition of his workers' compensation claim. ECF No. 28 at 17-18. The underlying facts of these claims are discussed in turn.

B. Failure to Train Allegations

Mr. Gergawy contends that Jim Grantham, the USB production manager, refused to train him as a foreperson because of his protected characteristics. Mr. Grantham is the primary decisionmaker as to who is selected as a foreperson at USB. Mr. Gergawy also asserts that Defendant USB took retaliatory actions against him for filing an EEOC complaint and taking FMLA leave. For example, while Mr. Gergawy originally did not work Saturdays and Sundays, he claims that Defendant USB eliminated his Sundays off and granted that day off to a worker with less seniority. He also asserts Defendant USB installed cameras to monitor his workstation.

Mr. Grantham asserts that he met with Mr. Gergawy and offered to have the production supervisor, Brian Sills, look for training opportunities for Mr. Gergawy to learn the mixing room and production foreperson paperwork so he could become a foreperson. Mr. Grantham identified hours for training in January 2020 for Mr. Gergawy to attend-three days of training in the mixing room were provided on January 14, 15, and 16, 2020. On or about January 17, 2020, Mr. Grantham offered to allow Mr. Gergawy to come in at the beginning of a foreperson shift to learn the foreperson paperwork and earn overtime. On March 2, 2020, Mr. Gergawy went out on a workers' compensation claim without responding to Mr. Grantham's offer to provide additional training.

At some point, Mr. Grantham appointed Paul McAvoy to fill a relief foreperson position because the former relief foreperson was retiring. Mr. Grantham claims Mr. Gergawy was not considered for the position because he had appeared to have lost interest in becoming a foreperson and was out of work for the foreseeable future. He states that he selected Mr. McAvoy for the position because he was a former bun production foreperson and required minimal training to get up to speed, as he had previously trained on all the bun line production jobs.

In August 2020, Defendant USB added a swing shift foreman position. Although Mr. Gergawy states he sought this position, he was not selected. On January 1, 2021, Mr. Sills offered foreperson training to Mr. Gergawy again, and Mr. Gergawy stated he could not accept training until he spoke with his attorney. After back-and-forth correspondence, Mr. Gergawy ultimately agreed to begin training again on January 25, 2021. Mr. Gergawy was provided foreperson paperwork training on February 3 and February 4, 2021. He was informed that his mixing training would resume whenever training hours were available, as there were not enough bid workers to cover Mr. Gergawy's position on the oven. On February 9, 2021, Mr. Gergawy went out on another workers' compensation claim and therefore ceased training. Mr. Grantham claims that, unlike others who requested foreperson training, Mr. Gergawy did not sign up for training on the additional required positions, including the sponger, mixer, and mixer helper positions.

C. Harassment Allegations

On or about May 23, 2019, management for Defendant USB met with Mr. Gergawy and a production foreperson, Quincy White, regarding Mr. Gergawy's allegations of harassment against Mr. White. Mr. Gergawy asserted that Mr. White falsely accused him of failing to be at his assigned station and Mr. White harassed him by asking him twice to help fix a pan jam. Mr. White stated that he did not believe Mr. Gergawy was at his workstation and claimed that he only asked for Mr. Gergawy's help once.

On or about February 26, 2020, Defendant USB's management...

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