Workers’ Comp Discrimination Confined to WCAB
Would applicant’s prefer to litigate Labor Code 132a issues in civil court instead of before the Workers’ Compensation Appeals Board? On the one hand, perhaps the applicant might luck out with a sympathetic jury, one which would value the world’s tiniest violin over the law. There is also the advantage of driving up the expense and delay for the defense, pressuring a bigger settlement. And who knows, perhaps, there would be no cap to “damages” for a 132a claim in a civil trial.
Fortunately, we don’t have to worry about these pocket-sized insanities in the workers’ compensation arena. The Court of Appeal, in a partially published decision, held that an applicant claiming wrongful termination and discrimination based on Labor Code section 132a.
In the case of Michelle Dutra v. Mercy Medical Center Mt. Shasta, plaintiff filed an action for defamation and wrongful termination in violation of public policy, specifically Labor Code section 132a. Essentially, Ms. Dutra allegedly injured her back while working as a housekeeper for Mercy, and filed a claim in 2008. Her employment was terminated later that year. Undoubtedly, Mercy was just retaliating against Ms. Dutra for filing a claim, although the fact that she had committed check fraud, falsified her time-card, abandoned her post without clocking out, and repeatedly gossiped on duty after being repeatedly cautioned not to, might have had something to do with it as well.
But Ms. Dutra did not file a Petition for penalties or increased benefits under Labor Code section 132a. Instead, she cited one part of 132a, specifically the initial statement that it “is the declared policy of this state that there should not be discrimination against workers who are injured in the course and scope of their employment.”
The Court of Appeal found that applicant’s claim was rightfully dismissed by the trial court, as Labor Code section 132a rests exclusively within the domain of workers’ compensation. However, there may be other remedies under the Fair Employment and Housing Act, which Ms. Dutra declined to pursue.
In any case, it looks like employers don’t need to worry about jury selection just yet.