Cervantes v. Nijjar Realty, Inc.
June 30, 2016
Following a three-day trial, an arbitrator rejected Ricardo Diaz Cervantes' claim against his former employer, Nijjar Realty, Inc., represented by attorney Justin M. Marvisi. The action was initially filed in Los Angeles County Superior Court, but was successfully compelled to arbitration before the Employment Arbitration Tribunal.
The matter arose out of a claim made by a former maintenance worker, who alleged that 18 months prior to his termination, he suffered an industrial injury that caused him to become disabled. He further alleged that he reported the on-the-job injury to his supervisors, but was threatened that he would be terminated if he reported his injury to management, received no accommodation for being disabled and was eventually retaliated and discriminated against after he filed a workers' compensation claim which resulted in his termination.
In response, Nijjar Realty, Inc. argued that that Mr. Diaz was not actually disabled, and that he was terminated because of a non-pretextual layoff. Nijjar Realty, Inc. further contended that Mr. Cervantes' own actions belied his claim that they failed to provide reasonable accommodation for any alleged disability.
In ruling for Nijjar Realty, Inc., arbitrator Jonathan W. Biddle found that all of the documentary evidence concerning Mr. Diaz's injury pointed to the fact that at the time of the alleged injury, he did not call his supervisor or the Human Resources Manager and did not inform his medical providers of an industrial injury. He also found that the claimant told his doctor that he actually hurt his finger after work while helping a friend, and was treated for what his doctors classified as a mild injury requiring three stitches.
The successful outcome for the company ultimately rested on Mr. Marvisi showing the arbitrator that Mr. Diaz never actually sought treatment or submitted any doctor's note requesting that Nijjar Realty, Inc. accommodate him for an injury, and proved that Mr. Diaz continued to work as normal, was paid for overtime and double time while not once complaining to anyone that he was being mistreated, retaliated against or denied any accommodation whatsoever.