California: Proving a Labor Code Section 132a Violation Is No Longer an Impossible Task

On April 12, 2019, a unanimous panel clarified the standard for making a prima facie showing of illegal discrimination as enunciated by the Supreme Court in Department of Rehabilitation v. Workers’ Comp. Appeals Bd. (Lauher) (2003) 30 Cal. 4th 1281 [68 Cal. Comp. Cases 831] (See, Franco v. MV Transportation, Inc. (April 12, 2019) 2019 Cal. Wrk. Comp. P.D. LEXIS 120). The Franco panel held that injured workers may make a prima facie showing of unlawful discrimination even where they cannot demonstrate a singling out for disadvantageous treatment, so long as they show some adverse result as a consequence of some action or inaction by the employer that was triggered by the industrial injury, and that they had a legal right to receive or retain the deprived benefit or status and the employer had a corresponding legal duty to provide or refrain from taking away that benefit or status. In other words, injured workers must show they were subject to disadvantages not visited on other employees because of the industrial injury. Since the panel’s decision in Franco, a second unanimous panel has wholeheartedly endorsed its clarification of the Lauher standard and affirmed the WCJ’s finding of discrimination in violation of Labor Code section 132a where the industrially injured employee demonstrated that he was subjected to disadvantages that were not visited upon other employees. The case is Alnimri v. Southwest Airlines and the Appeals Board panel’s Opinion and Decision after Reconsideration issued on July 31, 2019.

Both applicant and defense attorneys should pay close attention to Alnimri. In contrast to Franco in which the case was returned to the trial level for development of the record, the Alnimri panel applied the Lauher standard as articulated in Franco to affirm the finding of a section 132a violation. Thus, the panel’s decision provides a clear illustration of the evidentiary showing necessary to sustain the injured worker’s burden of establishing how the employer’s actions subjected him to disadvantages not visited upon other employees because of the injury. Briefly, Alnimri worked as a Ramp Agent for approximately nine years when he sustained an industrial back injury. Following the injury, Alnimri was off work for a period of time, and was then returned to his usual and customary job without restriction by his treating physician. He was able to perform those duties without adverse effect. After Alnimri had been returned to work for approximately six weeks, the Panel Qualified Medical Evaluator (PQME) issued a report, noting that Alnimri was working full-time and performing his full duties. Notwithstanding, the PQME advised that Alnimri was restricted from very heavy lifting on a constant basis and lifting in excess of 70 pounds on an occasional basis. Alnimri’s job duties required lifting of 70 pounds.

Approximately one month after the PQME report issued, Alnimri was dismissed from work by his supervisor, apparently because of the medical restrictions indicated in the PQME’s report. Prior to the dismissal defendant did not interview Alnimri about his ability to do his job. Instead, defendant placed Alnimri on the injury list and Alnimri lost time from work from November 26, 2011 to June 19, 2012, when he was returned without any restrictions. Although Alnimri’s supervisor was not aware of the conflict in the medical reports, he did state that when he was aware of such a conflict, it would be reported to headquarters.

Defendant’s station manager, however, testified that it was his job to resolve conflicts in work status reports and when he became aware of the conflict in the reports of Alnimri’s treating doctor and the PQME, he referred the matter to defendant’s Dallas headquarters for resolution by referral to a company doctor. The station manager was unaware as to whether or not that referral was ever made, and no evidence was presented that defendant followed its usual process to resolve conflicts in the medical reports by referral of Alnimri for examination by a company physician before it dismissed Alnimri from work.

The panel concluded that Alnimri made a prima facie showing of section 132a discrimination. First, Alnimri showed that he suffered an adverse result as a consequence of defendant’s actions. Defendant dismissed Alnimri from work for a period of approximately seven months because of his injury even though his treating physician had released him to return to work without restriction and he was able to work without restriction until his dismissal. Second, even though defendant was aware of the conflict in the work status reports of Alnimri’s treating physician and the PQME, it did not follow its normal procedures to resolve that conflict before dismissing Alnimri from work. That deviation by defendant, says the panel, demonstrates that defendant subjected Alnimri to disadvantages not visited upon other employees because of his injury. Thus, Alnimri met his burden of proof of a prima facie showing of section 132a discrimination.

The panel also rejected defendant’s claim that it justifiably relied on the PQME’s report when it dismissed Alnimri from work. In a stinging rebuke of this contention, the panel points out that defendant did not rely on the PQME report; instead, defendant recognized the conflict between Alnimri’s treating physician and the PQME, and initiated the process to resolve that conflict by referral to its headquarters for examination by a company doctor. But rather than complete its conflict resolution process to determine whether reliance on the PQME was justified, defendant dismissed Alnimri.

Lastly, the panel found no merit in defendant’s argument that in absence of a statutory mandate it was not legally obligated to resolve the conflicts between Alnimri’s treating physician and the PQME before it dismissed Alnimri. The fact of the matter is that defendant had a process for resolving conflicting medical reports concerning its injured employees. When it dismissed Alnimri without completing that process to resolve the divergent opinions between Alnimri’s treating physician and the PQME, it discriminated against Alnimri in violation of section 132a.

While it is true that Alnimri is only a panel decision and, accordingly, not binding precedent, it offers valuable insights as to the evidentiary underpinnings required to sustain a claim of discrimination in violation of section 132a. Defendant’s failure to follow its own voluntary process to resolve conflicting medical reports prior to dismissing Alnimri from work was conduct that subjected Alnimri to disadvantages not visited upon other employees. It was an act of unlawful discrimination under section 132a.

Practitioners should check the subsequent history of any cases before citing to them.

Any information or opinions contained in this commentary are not necessarily endorsed by LexisNexis® or its affiliates.

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