Kaur v. Foster Poultry Farms — When is a Win Not a Win

By editor on December 11, 2022

An employee working at a chicken processing plant slipped and fell twice at work. Following her second fall, requiring surgery to repair her fractured wrist, she returned to work with restrictions. Six months later, she was terminated for violation of the company’s lunchbreak policy.  She successfully grieved her termination and was reinstated.

Approximately two years later, she was terminated as a part of a restructuring. Two plants were combined and approximately 200 employees were terminated. There was a list of open positions; however, the employer determined the employee was only eligible for one position (jack hammer driver). The employee felt she could not safely operate a jack hammer driver with just one hand. She felt it required two hands and because of her medical restrictions, that was not feasible, and declined to even train for that position.

Following her termination, the employee filed a worker’s compensation claim, alleging retaliation and discrimination under Labor Code 132a. In that arena, the employer prevailed. Following an evidentiary hearing, the administrative law judge (ALJ) found for the employer, finding the employee failed to prove she was discriminated against because of her industrial injury under Labor Code 132a.  The employer won… but not completely.

The employee had previously filed a charge for disability discrimination under the Fair Employment & Housing Act (“FEHA”) and after losing the WCAB claim, filed a civil lawsuit. The complaint alleged three distinct theories. First, disability discrimination (Govt Code 12940a); second, a failure to reasonably accommodate her physical disability (Govt Code 12940(m)(1); and third, a failure to engage in the interactive process (Govt. Code 12940(n)). The employer was granted summary judgment when the trial court found the WCAB judge’s findings were precluded such civil claims.

However, the appellate court disagreed, noting that FEHA and Labor Code 132a are “distinct legal regimes without any clear overlap.” Id. ___. The court explained FEHA clams “involve entirely different inquiries and issues than her claims under Labor Code 132a and encompass a whole range of affirmative duties and other requirements applicable to the employer (e.g. continuing obligations to make reasonable accommodations and engage in the interactive process) as well as benefits that accrue to the employee (e.g. preferential treatment with regard to open positions), that have no relevance to the Labor Code 1321 proceeding.” Id. ___Specifically, the WCAB judge did not apply FEHA standards concerning three issues: 1) if reasonable accommodation was provided when the employee returned to work after her wrist surgery; 2) if the employer provided reasonable accommodation and engaged in the interactive process during the restructuring; and 3) the employer’s proof of undue burden.

What if the ALJ judge had applied FEHA standards, or made specific findings on all of these matters? Arguably, there might have been a different outcome. The opinion does not stand for the broad proposition that factual findings by an administrative law judge on a claim under Labor Code 132a can never supply the basis for issue preclusion in a FEHA lawsuit. Rather, the appellate opinion identified a series of issues the administrative law judge did not decide (because they are not commonly raised under Labor Code 132a) and so as the concurring justice noted, the administrative law judge “expressly declined to reach factual issue.”

Because there are many obligations an employer has toward a disabled employee, leading to multiple theories of liability, a FEHA disability lawsuit is often a poor candidate for claim preclusion.  Instead of the employer trying to utilize claim preclusion to obtain dismissal of a FEGA action in its entirety, employers should identify common factual issues in the two proceedings. As an example, alleging a retaliatory termination was because of an industrial injury, and the administrative law judge disagreed, then such a factual finding should precluded FEHA claims for retaliation.  Likewise, in the Labor Code 132a claim, if the employer obtained a finding there was no discrimination because there was no vacant position, or that the employee’s requested accommodation was not required as a matter of law, we can envision how such factual findings could form the basis to bar theories of FEHA liability.

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