ADJ9298865 · October 22, 2021

Applicant's credible testimony of job search efforts and legal precedent support that he mitigated damages despite limited job applications and no unemployment benefits claimed.

From the decision · page 2Applicant testified that he began looking for work "as soon as he was released" (11/16/20 SOE, Page 3, 1-5). He was released from medical treatment on June 12, 2014 and was hired on October 27, 2015. Therefore, applicant was available, but not working, for a 16 month period of time. Petitioner contends that the applicant's job

Applicant willing to return to work; pandemic-related absence is reasonable; reinstatement ordered when safe reopening guidelines are met.

From the decision · page 6Lastly, we address defendant's contention that applicant is not entitled to reinstatement because he removed himself from the labor market to avoid potential health risks resulting from the Covid-19 pandemic. Here, applicant specifically testified that he is willing to return to work for defendant. (Minutes of Hearing (Further) and Summary of Evidence (132a Only), November 16, 2020, p. 3:7.) In addition, we concur with the WCJ's reasoning that the fact that applicant did not search for work after his March 2020 termination from a service advisor position with Ford of Irvine does not suggest that he removed himself from the labor market given the circumstances of the pandemic. (Report, p. 6.) We are therefore unable to discern grounds to support defendant's contention that applicant is not entitled to reinstatement.

Defendant offered no legal authority to claim credit for unemployment benefits; applicant entitled to lost wages without deduction for benefits not received.

From the decision · page 6We next address defendant's contention that applicant failed to mitigate his damages because he did not seek unemployment benefits he could have obtained from the EDD. In this regard, defendant cites no authority, and we are aware of none, for the proposition that applicant's duty to mitigate damages includes a duty to seek unemployment benefits for which defendant may subsequently claim a liability credit. To the contrary, the authorities of which we are aware suggest otherwise.

Applicant testified credibly that he applied for six jobs and contacted other potential employers during the 16 months after medical release.

Favours Applicant prevailed

Supports finding that applicant mitigated damages by attempting to obtain employment.

From the decision · page 2Applicant testified that he began looking for work "as soon as he was released" (11/16/20 SOE, Page 3, 1-5). He was released from medical treatment on June 12, 2014 and was hired on October 27, 2015. Therefore, applicant was available, but not working, for a 16 month period of time. Petitioner contends that the applicant's job

Defendant offered no legal authority to claim credit for unemployment benefits not received by applicant.

Favours Applicant prevailed

Supports finding that applicant is entitled to lost wages without deduction for unemployment benefits.

From the decision · page 6We next address defendant's contention that applicant failed to mitigate his damages because he did not seek unemployment benefits he could have obtained from the EDD. In this regard, defendant cites no authority, and we are aware of none, for the proposition that applicant's duty to mitigate damages includes a duty to seek unemployment benefits for which defendant may subsequently claim a liability credit. To the contrary, the authorities of which we are aware suggest otherwise.

Applicant testified he is willing to return to work but is currently not looking due to Covid-19 pandemic and advanced age.

Favours Applicant prevailed

Supports finding that reinstatement is appropriate when safe reopening guidelines are met.

From the decision · page 6Lastly, we address defendant's contention that applicant is not entitled to reinstatement because he removed himself from the labor market to avoid potential health risks resulting from the Covid-19 pandemic. Here, applicant specifically testified that he is willing to return to work for defendant. (Minutes of Hearing (Further) and Summary of Evidence (132a Only), November 16, 2020, p. 3:7.) In addition, we concur with the WCJ's reasoning that the fact that applicant did not search for work after his March 2020 termination from a service advisor position with Ford of Irvine does not suggest that he removed himself from the labor market given the circumstances of the pandemic. (Report, p. 6.) We are therefore unable to discern grounds to support defendant's contention that applicant is not entitled to reinstatement.

Labor Code section 132a

Labor Code section 132a mandates reinstatement and reimbursement for lost wages caused by employer's discriminatory acts.

Applied to order reinstatement and lost wages without credit for unemployment benefits.

From the decision · page 4Labor Code § 132a states in part "Any such employee shall also be entitled to reinstatement and reimbursement for lost wages and work benefits caused by the acts of the employer." (Emphasis added). The word "shall" is not permissive. It is mandatory.... The applicant has no work restriction that bars him from performing his former job of service writer. In fact, prior to the pandemic, which caused applicant to lose his present job, applicant was working the same job, a service writer, for a different dealership.

Monroe v. Oakland Unified School District (1981)

An employee's duty to mitigate damages requires seeking other employment but does not require applying for unemployment benefits.

Applied to reject defendant's claim for credit for unemployment benefits.

From the decision · page 6In Monroe v. Oakland Unified School District, (1981) 114 Cal.App.3d 804, the court held that in "computing the damages awarded to a wrongfully discharged employee in an action for breach of contract, unemployment insurance benefits `are not deductible as compensation received from other employment in mitigation of damages... Benefits of this character are intended to alleviate the distress of unemployment and not to diminish the amount which an employer must pay as damages for the wrongful discharge of an employee.'" (Id. at 810-11 (citing Billetter v. Posell (1949) 94 Cal.App.2d 858).) The court reasoned that "the law... does not require the mitigation of damages by everything of value received during a period of wrongful unemployment. Rather, the rule of mitigation requires only the duty to seek other employment." (Id. at 811 (citing Parker v. Twentieth-Century Fox Film Corp., (1970) 3 Cal.3d 176 and Gonzales v. Int'l Assn. of Machinists, (1963) 213 Cal.App.2d 817.)

Applicant's credible testimony of job search efforts including six applications and other contacts

From the decision · page 2Applicant testified that he began looking for work "as soon as he was released" (11/16/20 SOE, Page 3, 1-5). He was released from medical treatment on June 12, 2014 and was hired on October 27, 2015. Therefore, applicant was available, but not working, for a 16 month period of time. Petitioner contends that the applicant's job

Applicant's testimony of unwillingness to return to work immediately due to Covid-19 pandemic and advanced age

From the decision · page 5At the damages trial on November 16, 2020, the applicant testified that he was uncomfortable returning to work immediately due to the pandemic and his advanced age. Defendant's argument that applicant's testimony was irrational has no basis in our current reality. In a normal world, defendant's argument might be valid, but right now, we are living in unprecedented times, which require the court to be creative in fashioning and applying an appropriate remedy for the situation.