ADJ7303582 — California WCAB decision

What the panel ordered

Petition for Reconsideration denied; July 13, 2021 Joint Findings of Fact affirmed

Petition for Reconsideration granted to allow further study; now decision after reconsideration issued affirming prior findings

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What was disputed, and how it came out

Each issue the panel decided, with the reasoning it gave. An outcome is what this panel did on this record — not a rule, and not a prediction.

Discrimination under Labor Code §132aDefendant prevailedrespiratory system · psyche

Applicant failed to prove a prima facie case of discrimination under LC 132a because he did not show he had a legal right to retain employment or that termination was due to his industrial injury; credible evidence showed termination was due to unexcused absences predating injury and proper warnings.

From the decision · page 4Here, we agree with the opinion of the WCJ, as expressed in the Report, that applicant did not meet his burden of demonstrating a prima facie violation of section 132a. Moreover, we have given the WCJ's credibility determinations great weight because the WCJ had the opportunity to observe the demeanor of the witness. (Garza v. Workmen's Comp. Appeals Bd. (1970) 3 Cal.3d 312, 318-319 [35 Cal.Comp.Cases 500].) Furthermore, we conclude there is no evidence of considerable substantiality that would warrant rejecting the WCJ's credibility determination. (Id.)

The facts that decided it

What the panel treated as outcome-determinative, and which side it favoured.

Employer met with applicant about unexcused absences before injury was reported and planned termination.

Favours Defendant prevailed

Indicates termination decision was made prior to injury report, negating discrimination claim.

Applicant had extensive unexcused absences and received warnings before injury date of March 12, 2008.

Favours Defendant prevailed

Shows termination was based on attendance issues predating injury, not discrimination.

From the decision · page 12Accordingly, the Second Warning Notice was in effect for one year, until April 24, 2008, which encompassed the applicant's subsequent claimed injury of March 12, 2008. Thus, the applicant had already been reprimanded close to 1 year before he filed his claim. Within that one year, approximately 6 months after the Second Warning Notice issued, the applicant then received a "Final Warning Notice, Joint Exhibit D, on November 6, 2007. The letter indicated that the applicant had missed the period between October 8, 2007 through November 1, 2007, for a total of 152 hours.

Employer corrected record to reflect medical leave as excused and terminated applicant for unrelated unexcused absences.

Favours Defendant prevailed

Demonstrates termination was not due to injury-related absences, undermining discrimination claim.

From the decision · page 18Petitioner also argues that the case of Pacific Bell v. WCAB (Escatel) (1996) 61 CCC 72 (writ denied) supports there was a 132a violation, because it involved a termination based on excessive absenteeism, and that "some of the absences were due to the industrial injury and the employer failed to correct its records to reflect that prior to termination." Petition for Reconsideration, page 16, lines 9-13. However, as supported by Joint Exhibit B, defendant herein did correct the record to reflect the applicant's medical leave of absence as "excused," and the applicant was terminated do to unexcused absences unrelated to his injury. Thus, the case does not support petitioner's arguments.

ADJ7303582 · December 14, 2021

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