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Jordon HarlanAndrew HillierFrankie DiGiaccoDustin Collier

Jordon Harlan · Andrew Hillier · Frankie DiGiacco · Dustin Collier

$9,372,000 Verdict Employment; CFRA Leave of Absence/Retaliation “Cashing in on Credibility”

TLU Icon August 14, 2024 5:30 PM||Zoom Logo

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On December 20, 2023, Harlan Law, PC and Hillier DiGiacco, LLP obtain a 9.372M in Department 72 in the downtown, San Diego Superior Courthouse. In late 2020, Plaintiff, 69 year-old Marilyn Buron, was working as a certified occupational hand therapist for Concentra’s affiliated company, Occupational Health Centers of California. Her adult disabled son had a medical emergency and she was required to take a leave of absence to tend to his emergency needs and post-hospital caretaking needs. While Marilyn was on her leave of absence, Concentra made the decision to terminate her contract and hire a 28 year-old to fill Marilyn’s position. When Marilyn returned from work, they immediately terminated her contract and relegated her to cleaning duties. After her 30 days notice under her employment contract expired, she was moved to an “as needed” position and ultimately only offered two additional shifts with Concentra. After approximately four months, Marilyn found a new position as a certified hand therapist.

The case dealt with the following issues:

(1) Plaintiff had little quantifiable damages. Plaintiff had pre-existing psychiatric diagnoses that made it difficult to claim severe emotional distress. Ultimately, severe emotional distress and any related treatment needed to be waived. Plaintiff had little economic damages because she was re-employed within 4-5 months and made a higher hourly at her new job.

(2) While we believed her “garden variety” emotional distress to be significant, we had few damages witnesses. Plaintiff mostly only confided in her husband and due to the fact her son had multiple disabilities, including autism spectrum disorder, we were unable to call him as a witness. Marilyn’s husband, in his 80s, struggled to articulate the acute emotional distress experienced by Marilyn.

(3) Almost all witnesses to the liability case were defense witnesses. Concentra’s witnesses were the only people privy to the content of meetings, existence of documents, communications, etc.

(4) Concentra and its attorneys basically refused to engage in the discovery process. Plaintiff’s counsel was required to meet and confer on almost every type of discovery and ultimately prevailed on more than 10 motions to compel various types of discovery. The Court eventually ordered the parties to a discovery referee.

(5) Defendant’s contention was that prior to taking a leave of absence, Marilyn expressed a desire to work part-time and refused to work full-time. The claimed they needed a full-time employee and this was the real reason for her being terminated to be moved to an “as needed” position that would accommodate her requested schedule. They used testimony of various witnesses and text messages to prove she only desired a part-time schedule, consistent with her supervisor’s claim. The trial court admitted (over objection) Marilyn’s part-time schedule from her post-Concentra employment to prove her state of mind/desire to work less than full-time.

(6) No direct evidence, aside from the age gap, of age discrimination.

(7) No clear pattern and practice within Concentra of discriminating against employees that took CFRA leave, in fact, Marilyn took at least one prior CFRA leave with no issues.

(8) For much of the case, Concentra denied it was an employer, joint or otherwise, of Marilyn. This created further hurdles for discovery and we saw this as potentially being a time-consuming issue at trial.

Despite proceeding with only garden-variety emotional distress damages, the jury awarded 1.56M in past and future emotional distress. At the punitive phase of trial, the jury awarded an additional 7.8M in damages.

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