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In April 2004,Plaintiff Louise Pena was hired by Defendant Central Freight Lines, Inc. at its Hayward, California terminal. Pena’s job was a customer service representative.

In late February 2008, Central hired a new terminal manager, Aaron Holstein, at its Hayward Facility. On March 14, 2008, three weeks after hiring Holstein, Pena was injured in an automobile incident on her way to work. At approximately 5:30 am on highway 80 a large metal bar crashed through the windshield of her car barely missing her head, smashed the rear window and landed in the back seat. Later that day Pena called Holstein and notified him that she had hurt her back and neck and was in pain. Holstein asked her to keep Central informed as to her medical condition and when she would be returning to work. On several occasions Pena provided status information to her employer.

Based upon her regular status reports, the trial court concluded that the employer “knew or should have known and understood that Plaintiff had a serious health condition that entitled her to medical disability leave under the California Family Rights Act (CFRA) and Defendant knew or should have known that Pena was entitled to a reasonable accommodation under the Fair Employment and Housing Act (FEHA).”

Instead, on Tuesday, March 25, 2008, Holstein recommended in a memorandum to his supervisors, that Pena be terminated. This memorandum also states that Pena was experiencing migraine headaches and her doctor had taken her off work. Holstein’s memorandum indicates his dissatisfaction with her attendance, specifically mentioning March14, 17 and 25, 2008 which were protected leave dates. On March 28, 2008 Holstein and Central’s Human Resources Department executed Pena’s Notice of Separation. The form Separation Notice contained 21 possible categories for termination. The Defendant marked the category ‘absenteeism’ as the reason for Pena’s termination. No other category was marked.

On Monday, April 1, 2008, Pena returned to work without any limitations or restrictions and able to perform all the essential functions of her job. She brought with her written medical certifications confirming that she had been totally unable to work from March 14 to March 31, and that she had been under the doctor’s professional care. Holstein suspended her and sent her home and told her to call in every day to determine whether there was work for her, even though Holstein knew that he would not be offering Pena any work. The trial Court found that there was plenty of work to do in the customer service department at that time.

She sued Central under the Fair Housing and Employment Act (Gov. Code, § 12900 et seq. (FEHA)) and in a non-jury trial, prevailed on all of her causes of action. The court awarded Pena $470,000 in economic and noneconomic damages and $431,884.25 in attorneys’ fees. The award was affirmed by the Court of Appeal in the unpublished case of Pena vs Central Freight Lines. Inc.

On appeal Central claimed that emotional distress damages arising from job loss are barred by the exclusive remedy provisions of the workers’ compensation law. The court ruled that this argument was correct as a general matter, but wrong in this case. “Emotional distress caused by misconduct in employment relations involving, for example, promotions, demotions, criticism of work practices, negotiations as to grievances, is a normal part of the employment environment. A cause of action for such a claim is barred by the exclusive remedy provisions of the workers’ compensation law. [Citations.] The Legislature, however, did not intend that an employer be allowed to raise the exclusivity rule for the purpose of deflecting a claim of discriminatory practices. [Citations.] Thus, a claim for emotional and psychological damage, arising out of employment, is not barred where the distress is engendered by an employer’s illegal discriminatory practices.”