Citizens of Humanity LLC, designs, markets, and manufactures blue jeans and other apparel under the trademark “Citizens of Humanity.” Noe Abarca worked in Citizens’s quality control department, separating and inspecting boxes of jeans from February 2006 until his termination on August 28, 2012.

After approximately four months with Citizens, Abarca started experiencing pain in his chest and clavicle area, which became more intense when lifting. The pain worsened and in July of 2012, the pain became unbearable.

His direct supervisor, Augustina Manzano, instructed him to see a doctor and referred him to Citizens’s head of human resources, Alma Casas, who did not advise Abarca to fill out a workers’ compensation claim form, so Abarca was not aware that he could file a claim for injury.

Abarca saw a doctor who issued a work restriction that Abarca was “unable to lift heavy objects” and that “15 to 20 lbs is the most” he could lift. The certificate also said that Abarca could return to work only doing “light work” from July 24, 2012 through August 24, 2012.

Two business days after the restriction expired, Citizens terminated Abarca. On the day of his termination, Casas, who Citizens entrusted to oversee employee terminations, thanked Abarca for his work, but said his services were no longer needed. Abarca insisted that he could continue inspecting jeans, but Casas responded that Citizens could not accommodate him.

On the day of his termination, Casas instructed Abarca to complete a workers’ compensation claim form which she did not explain and Abarca did not understand. This was the first workers’ compensation claim form that Abarca filled out. Under the heading, “Date employer first knew of injury,” Casas instructed Abarca to write, “August 28, 2012,” that same day.

Abarca sued Citizens for: retaliation, disability discrimination, failure to engage in the interactive process, failure to provide reasonable accommodation, failure to prevent/remedy discrimination and retaliation under the Fair Employment and Housing Act (FEHA), and wrongful termination in violation of public policy.

The jury awarded Abarca a total of $100,000 in compensatory damages: $35,000 for past lost earnings; $20,000 in other past economic loss; $45,000 in past non-economic losses including mental suffering; and nothing for future non-economic losses. The jury also awarded Abarca $550,000 in punitive damages.

The Court of Appeal affirmed the judgment in the unpublished case of Abarca v. Citizens of Humanity, LLC.

One of the eight issues raised on appeal by Citizens was judicial estopple. Citizens contended that judicial estoppel bars Abarca’s claims because, in his successful application for disability benefits, Abarca represented that he was unable to work, but then sued Citizens for lost wages contending that he could have worked all along. According to Citizens, Abarca cannot reconcile the conflict between the finding that he was “temporarily totally disabled” for purposes of receiving state disability benefits and his present claim for lost wages.

Cleveland v. Policy Management Systems Corp., supra, 526 U.S. at page 807 held that an employee should have the opportunity to explain how she can be both entitled to disability and recover lost wages in a disability discrimination action based on her ability to perform at her job with reasonable accommodations.

Abarca’s explanation at trial was that he could have continued working for Citizens had they continued to honor his work restriction. This is critical because disability determinations do not consider whether an employee can perform his job duties with reasonable accommodations.