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Goldstine v. Fedex Freight, Inc.

United States District Court, W.D. Washington, Seattle

October 24, 2019

DAVID GOLDSTINE, Plaintiff,
v.
FEDEX FREIGHT INC, et al., Defendants.

          ORDER ON MOTIONS FOR SUMMARY JUDGMENT

          Marsha J. Pechman United States Senior District Judge.

         The above-entitled Court, having received and reviewed:

         1. Plaintiff's Motion for Partial Summary Judgment (Dkt. No. 56), Defendant's Response to Plaintiff's Motion for Partial Summary Judgment (Dkt. No. 64), Plaintiff's Reply re: Motion for Partial Summary Judgment (Dkt. No. 65);

         2. Defendants' Motion for Summary Judgment (Dkt. No. 61), Plaintiff's Opposition to Defendants' Motion for Summary Judgment (Dkt. No. 66), Defendants' Reply in Support of Motion for Summary Judgment (Dkt. No. 70);

         all attached declarations and exhibits; and relevant portions of the record, rules as follows:

         IT IS ORDERED that Plaintiff's motion for partial summary judgment is PARTIALLY GRANTED and PARTIALLY DENIED; Defendants' affirmative defenses are withdrawn or stricken with the exception of failure to mitigate and failure to participate in the interactive process.

         IT IS FURTHER ORDERED that Defendants' motion for summary judgment is DENIED.

         Background

         Plaintiff was employed by Defendant FedEx Freight (“FXF”) as a driver. Under the regulations (Federal Motor Carrier Safety Act; “FMCSA”) which govern the industry, drivers must be medically qualified to drive, which they establish by periodic physical examination. Interestingly, FXF does not controvert Plaintiff's representation that he self-identified as disabled when he applied for the job (Dkt. No. 61-5, Goldstine Depo at 2-3). The company simply observes: “This form is not reviewed by the Service Center.” Dkt. No. 61, Def Motion at 5.

         Plaintiff was medically qualified to drive on February 2, 2017, but the qualification was only valid for three months (the examining doctor was concerned about Plaintiff's glucose levels and wanted him to return in three months for a re-check of his blood sugar). (Dkt. No. 61-2, Ex. 1.) Plaintiff then underwent a follow-up Department of Transportation (“DOT”) physical on March 9, 2017 which qualified him for one year. At the time of the February exam, he disclosed a “right knee” condition. Id.

         On April 6-7, 2017, Plaintiff was assigned a run from the FXF depot in Everett, Washington to the Portland, Oregon Service Center. The assignment required him to drive a trailer with a broken (uncloseable) door.[1] Plaintiff told his Operations Supervisor (Jessen) that it would be unsafe to drive the trailer with an open door and that, because he had limited range of motion in his right knee, he was not going to risk climbing into the trailer in the dark (on a rainy night) to fix it. Jessen himself tried unsuccessfully to close the door, then told Plaintiff to take another empty trailer, which Plaintiff did. (Dkt. No. 68, Decl. of Goldstine, ¶¶ 20-22.)

         FXF asserts that, based on Plaintiff's disclosure of his (allegedly undisclosed) physical limitation, it was required to insist on a new physical exam to confirm that he was medically qualified to perform his duties; Defendant cites to 49 C.F.R. § 391.11(a) as mandating the examination.

         (a) A person shall not drive a commercial motor vehicle unless he is qualified to drive a commercial motor vehicle. Except as provided in § 391.63, a motor carrier shall not require or permit a person to drive a commercial motor vehicle unless that person is qualified to drive a commercial motor vehicle.

         Plaintiff reports that he was required to submit a written report about the incident (which he did), was “medically de-certified, ” de-activated and required to be medically re-certified before returning to work. (Decl. of Wong, Ex. B.) He alleges that the Service Center Manager (Applesland) told him that he (Plaintiff) had stated “he could not do his job because of his disability, ” a statement which Plaintiff denies making. Decl. of Goldstine, ¶¶ 39-41.

         On April 13, 2017, Plaintiff underwent another DOT physical. He claims he was recertified (Dkt. No. 66, Plaintiff's Response at 5); Defendant alleges that “the DOT physician refused to sign the physical exam report.” Motion at 3-4.[2] Defendant alleges that “Plaintiff did not inform FXF that the physician refused to sign the report” (id. at 4); Plaintiff testified that he felt there was no need to inform his employer because the doctor told him she had already contacted Defendant's Operations Supervisor (Hoggatt). (Goldstine Depo at 26.)

         Plaintiff reports an April 18, 2017 meeting with FXF's Employee Relations Advisor (Tayman) and his Operations Supervisor where he was accused of withholding information regarding his “disability” and informed that FXF would not accept the results of the April 13 physical. Plaintiff clearly believes that he informed the examining physician about his physical limitations; Defendant just as clearly believes that (prior to a later physical in June) Plaintiff had not advised the examiner about why the re-examination was required. (See Dkt. No. 67-8 at 3; email from FXF Safety Assistant Tammy Roger to Applesland.)

         Plaintiff alleges that he was also advised by Tayman that she would get back to him regarding other work he could do, but that he was never contacted again about an interim accommodation. Decl. of Goldstine at ¶¶ 46-50. Plaintiff submitted a copy of FXF's Reasonable Accommodation Procedures (Decl. of Wong, Ex. C), which he asserts (and Defendant FXF does not deny) were not followed.

         On April 27, Plaintiff alleges that he was advised that he was not to appear at the Everett Service Center while “the investigation” was ongoing. Goldstine Decl. at ¶¶ 55-56.[3] On May 2, an FXF Security Specialist (Flick) emailed Tayman to clarify that Plaintiff's April 13 exam had not been terminated because of Plaintiff's behavior (apparently the doctor had advised someone at FXF that Plaintiff was “angry” during the exam) but because the examining physician saw no need to re-examine Goldstine when he had just recently been certified as fit for duty. (Dkt. No. 67-6, Wong Decl., Ex. F.) Plaintiff claims that Tayman emailed him the next day, “misstating several facts about [my] disability, ” and “falsely stat[ing] that U.S. Healthworks banned him from their facility for aggressive, threatening and inappropriate behavior” (Plaintiff Response at 7), but the citation in his briefing is not to that email.

         On June 5, Plaintiff filed a discrimination complaint against FXF with the Washington State Human Rights Commission (“HRC”). On June 15, Plaintiff was examined again. Defendant alleges that there were problems with the paperwork (i.e., that the examining physician did not complete the required “Federal Form” per 49 C.F.R. § 391.43[4]), that they worked with the physician to correct the deficiency and that the company medically requalified him to drive on July 25, 2017. The company alleges that Plaintiff was called at least twice to advise him that he could return to work, but FXF received no response. (Dkt. No. 61-4, Applesland Depo at 9.) An August 3 letter from Tayman also went unanswered (Dkt. No. 61-2, Ex. 4); Plaintiff asserts that he did not receive the letter and that the voicemails did not reveal the reason for the calls. (Goldstine Decl. at ¶¶ 64-66.)

         Plaintiff states that, having been out of work for three months, he took another job on July 8. (Goldstine Decl. at ¶ 63.) (Defendant claims that he took the job before the June physical exam “was completed” (Motion at 3-4), but their citation to that evidence is not in the exhibits they submitted; it is possible that FXF means that Plaintiff took the job before July 25 when the Federal Form was finally submitted.)

         On August 10, Defendant terminated Plaintiff's employment for “Violation of Leaves of Absence policy for failure to return from leave.” Wong Decl., Ex. I.

         Discussion

         Plaintiff Motion for Partial Summary Judgment

         Defendant's Answer lists 13 “affirmative defenses:”

1. Failure to state a claim
2. Statute of limitations/contractual limitations period
3. Failure to exhaust administrative remedies
4. Outside of the scope of administrative charge
5. Lack of jurisdiction
6. Insufficient and/or untimely filing of charge with WA State Human Rights Commission
7. Defendant's adoption of anti-discrimination and anti-retaliation policies ...

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