Webcor Prevails in Disability Discrimination Lawsuit

Affirming a summary judgment granted by Alameda County Superior Court judge Robert McGuinness, a California appellate court concluded that a Webcor laborer struck by falling plywood who suffered a minor head injury, was not discriminated against by his employer.

The general laborer sued Webcor, alleging it failed to follow the FMLA/CFRA and also discriminated based upon his work-related disability. In the trial court, Steve Werth of the firm obtained summary judgment, arguing that the worker failed to qualify for FMLA as his treating doctor returned him to work the next day. In regard to his claim of a failure to reasonably accommodate his disability, Webcor presented evidence the employee was returned to work for six days with medical restrictions that were accommodated, and then even after he had no medical restrictions, the employee was given light duty when he complained of headaches. Finally, the employee contended that he was terminated 90 days after his injury due to his requests for reasonable accommodation, and that Webcor’s assertion that he was part of a reduction in force as the high rise project moved forward was pretextual. The trial court disagreed, finding no triable issue of fact as to pretext.

On appeal, Peter Glaessner of the firm represented Webcor. In its unpublished decision, the court observed that “Even accepting Barboza’s depositon testimony that he repeatedly told his supervisors he had headaches, these did not qualify as a disability. From the perspective of Barboza’s supervisors, Barboza attended work every day and had been cleared to return to regular work by a doctor. To the extent Barboza’s pain limited his ability to perform his job, he testified it was treatable with Ibuprofen and when he felt he was unable to perform a task, his supervisors reassigned it – to accommodate him.”

The case is Barboza v. Webcor Construction L.P., (A 147144) decided December 19, 2017.