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Final Order
Hearings Unit: Final Order
 
BEFORE THE COMMISSIONER
OF THE BUREAU OF LABOR AND INDUSTRIES
OF THE STATE OF OREGON
 
In the Matter of
Case Number 11-96
TONY CHAN dba WONG´S CAFE
Respondent

 
FINDINGS OF FACT
ULTIMATE FINDINGS OF FACT
CONCLUSIONS OF LAW
OPINION
ORDER
 

 
SYNOPSIS
Complainant was not discharged because of her utilization of the workers´ compensation procedures or because of her application for workers´ compensation benefits where the Agency failed to prove with credible evidence a causal connection between Complainant´s discharge and the fact that Complainant filed a workers´ compensation claim and applied for benefits. ORS 659.410; OAR 839-06-105(4)(a).
 

 
The above-entitled contested case came on regularly for hearing before Linda A. Lohr, designated as Administrative Law Judge (ALJ) by Jack Roberts, Commissioner of the Bureau of Labor and Industries for the State of Oregon. The hearing was held on December 5, 1995, in the office of the State of Oregon Employment Department, 801 Oak Avenue, Klamath Falls, Oregon. The Bureau of Labor and Industries (Agency) was represented by Alan McCullough, an employee of the Agency. Tony Chan (Respondent) was present throughout the hearing and represented by Dennis L. Oden, Attorney at Law. July Morrell (Complainant) was present throughout the hearing and was not represented by counsel.
 
The Agency called the following witnesses in order of appearance: Michael Adams, M.D., Complainant´s treating physician (by telephone); Bernadette Yap Sam, Civil Rights Investigator, Bureau of Labor and Industries; Michael Morrell, Complainant´s husband (by telephone); Tony Chan, Respondent; and July Morrell, Complainant.
Respondent called the following witnesses in order of appearance: Denise Sinclair; Doreen (Dee) Lilly; and Tony Chan, Respondent.
Having fully considered the entire record in this matter, I, Jack Roberts, hereby make the following Findings of Fact (Procedural and on the Merits), Ultimate Findings of Fact, Conclusions of Law, Opinion, and Order.
 
 
1) On August 22, 1994, Complainant filed a verified complaint with the Civil Rights Division of the Agency alleging that she was the victim of the unlawful employment practices of Respondent. After investigation and review, the Agency issued an Administrative Determination finding substantial evidence supporting the allegations of the complaint. (Testimony of Complainant, Yap Sam; Exhibits A-1, A-2)
2) On October 30, 1995, the Agency prepared for service Specific Charges, alleging that Respondent discriminated against Complainant by terminating her from her employment based on her application for benefits, invoking, and utilizing the workers´ compensation procedures in violation of ORS 659.410. With the Specific Charges, Respondent was served with the following: a) a Notice of Hearing setting forth the time and place of the hearing in this matter; b) a Notice of Contested Case Rights and Procedures containing the information required by ORS 183.413; c) a complete copy of the Oregon Administrative Rules (OAR) regarding the contested case process; and d) a separate copy of the specific administrative rule regarding responsive pleadings. Both the Notice of Contested Case Rights and Procedures and the Bureau of Labor and Industries Contested Case Hearings Rules (OAR 839-50-130(1)) provide that an answer must be filed within 20 days of the receipt of the charging document. Respondent, through counsel, timely filed an answer on November 16, 1995. (Exhibits X-2, X-4)
3) On November 17, 1995, the Agency filed a Motion to Amend Specific Charges to add "Yuk Fu Johnny Chan dba Wong´s Cafe" as an additional Respondent. The Agency based its motion on an Opinion and Order issued by the Workers´ Compensation Board which referred to Yuk Fu Johnny Chan as Complainant´s employer during times material. On November 20, 1995, the ALJ conducted a prehearing telephone conference to ascertain the extent of Respondent´s knowledge of potential additional parties and to determine the necessity of postponing the hearing until additional Respondents could be joined. Respondent requested and was given additional time to provide to the ALJ and the Agency information regarding the existence of additional parties. The Agency shortly thereafter advised the ALJ by telephone that it was withdrawing its motion and on November 28, 1995, the Agency confirmed by telephone that Respondent had been notified of the withdrawal during a perpetuation deposition. (Exhibits X-3, X-8)
4) On November 20, 1995, the ALJ issued a Discovery Order to the participants, directing them each to submit a Summary of the Case pursuant to OAR 839-50-210. (Exhibit X-5)
5) On November 27, 1995, Respondent filed a Motion and Order for Continuance of the scheduled hearing because Respondent´s attorney, Dennis L. Oden, was attending a seminar during the week prior leaving him insufficient time to prepare Respondent´s case. The ALJ denied Respondent´s request, pursuant to OAR 839-50-150(5), because Respondent failed to show good cause for a postponement and because his request was untimely. (Exhibit X-8)
6) Pursuant to OAR 839-50-210 and the ALJ´s order, the Agency and Respondent each filed a Summary of the Case. On November 28 and December 1, 1995, respectively, the Agency and Respondent each filed an addendum to their case summaries. (Exhibits X-6, X-7, X-9, X-10)
7) At the commencement of the hearing, the ALJ admitted and read into the record certain exhibits stipulated to by the Agency and Respondent during a pre-hearing conference. (Statement of the ALJ)
8) At the commencement of the hearing, Respondent´s counsel stated that he had reviewed the Notice of Contested Case Rights and Procedures and had no questions about it. (Statement of Dennis L. Oden)
9) At the commencement of the hearing, pursuant to ORS 183.415(7), the ALJ orally advised the participants of the issues to be addressed, the matters to be proved, and the procedures governing the conduct of the hearing. (Statement of the ALJ)
10) The Proposed Order, which included an Exceptions Notice, was issued on March 8, 1996. On March 14, 1996, the Agency requested an extension of time to March 28, 1996, within which to file exceptions. The request was granted on March 14, 1996. Exceptions were required to be filed by March 28, 1996. On March 25, 1996, the Agency notified the forum that no exceptions would be filed. No exceptions were received by the Hearings Unit.
 
FINDINGS OF FACT -- THE MERITS
 
1) During times material herein, Respondent was an owner and operator of Wong´s Cafe, a restaurant located in Klamath Falls, Oregon, where Respondent engaged or utilized the personal services of six or more employees. (Testimony of Respondent, Complainant, Lilly; Entire record)
2) Respondent has owned the restaurant nine years and shares responsibility for its operation with his brothers and co-owners, Johnny Chan and Steve Chan. All of the brothers cook and maintain the kitchen, but the restaurant management falls primarily on Respondent. (Testimony of Respondent, Lilly, Complainant)
3) Dee Lilly has worked for Respondent between 7 and 8 years. At times material herein, Lilly, in addition to waiting on tables, was Respondent´s "head waitress"_ responsible for scheduling the other waitresses for their weekly shifts and interviewing prospective waitresses for employment with Respondent. New hires are always introduced to either Respondent or his brother, Johnny Chan, in Respondent´s absence, for final approval. Lilly handles the day to day waitress management, including assuring that busy periods are covered by adequate staff and that waitresses are scheduled for days off. She also makes arrangements for those who need additional time off. New hires are advised by Lilly of Respondent´s policy requiring advance notice, when possible, of the need for additional days off. When sick, the waitresses are asked to give as much notice as possible, but at least two hours notice is advised. When they make arrangements among themselves for trading shifts or substituting for each other, they are required to notify Lilly. Lilly discusses any waitress problems with Respondent, or, in his absence, Johnny Chan. Although Respondent is the final decision maker regarding discharge, Lilly´s recommendations are generally approved by Respondent when supported by a full explanation of the reasons behind the discharge. (Testimony of Lilly, Complainant, Respondent, Sinclair)
4) Complainant was employed by Respondent from October 1, 1993 to June 17, 1994. She was hired as a hostess and soon after put to work as a waitress. At times material, Complainant averaged a 30 hour work week and earned $4.75 an hour. She usually worked about five days a week. She averaged $60.00 per week in tips. (Testimony of Complainant, Lilly)
5) On March 29, 1994, Complainant woke up experiencing pain and numbness in her hands. After she arrived for her 11:30 a.m. shift she discussed her condition with two co-workers, Denise and Marilyn, and it was agreed that her co-workers would call someone to cover her shift while she went to the doctor for medical treatment. She was examined by Dr. Stuart who diagnosed tendinitis, took her off work for two days, and referred her to Dr. Adams for further treatment. (Testimony of Complainant, Sinclair; Exhibit A-3, A-9)
6) Dr. Adams took Complainant off work from approximately April 1, 1994, until he released her for work on May 14, 1994. (Testimony of Complainant; Exhibit A-6)
7) On April 1, 1994, Complainant filed a workers´ compensation claim. She also applied for and received workers´ compensation benefits. (Testimony of Complainant; Exhibit A-3, A-5)
8) In an Opinion and Order issued by the Oregon Workers´ Compensation Board on March 24, 1995, the Referee found that Dr. Adams initially diagnosed Complainant´s condition as tendinitis and later, in April, 1994, added possible deQuervain´s syndrome to his previous diagnoses of thumb and wrist tendinitis. The Referee also found that Dr. Adams´ chart notes did not reflect any diagnosis of Reynaud´s syndrome until after Complainant´s workers´ compensation claim was denied on June 27, 1995. The Referee concluded that Dr. Adams´ opinion on causation was not persuasive "because of his post hoc reasoning, his failure to initially diagnose Reynaud´s syndrome, his consequent inappropriate treatment, and his diagnosis of deQuervain´s syndrome based on thenar eminence pain." (Exhibit A-6)
9) Lilly was surprised and upset when Complainant filed the claim because she believed that Complainant had lied to her about the condition of her hands. Complainant initially told Lilly and some co-workers that her hand problems were of longstanding and preceded her employment with Respondent. The day after she saw Dr. Stuart, Complainant told Lilly she wasn´t going to file a claim because she didn´t believe it was work related. Lilly´s personal opinion at the time Complainant filed her claim was that the claim was not meritorious. Although Respondent was aware of the claim, he left handling the details of the claim up to Lilly and the insurance company. (Testimony of Lilly, Respondent, Sinclair; Exhibit A-3)
10) Complainant returned to work as a waitress on May 14, 1994. Neither her hours nor her pay was cut after she returned. (Testimony of Complainant, Lilly; Entire Record)
11) Complainant was scheduled for an independent medical examination (IME) in Portland on Tuesday and Wednesday, June 14 and 15, 1994, her regularly scheduled days off. She was scheduled to be off on Sunday, June 12 and scheduled to work on Monday, June 13 from 11:30 a.m. until 1:30 p.m. Complainant timely arranged to take Monday, June 13 and Thursday, June 16 off so that she could leave on Sunday, June 12 and visit relatives in Washington while in the Portland area. She told Lilly that she and her husband had "things to do" on Friday in Klamath Falls and that she would return from her trip in time for her 5:30 p.m. shift on Friday, June 17, 1994. Lilly asked Complainant to call her on Tuesday or Wednesday and let her know how the exam was going. (Testimony of Complainant, Lilly)
12) Complainant called Lilly for the first time on Friday, June 17, 1994, around 11:45 a.m. from Portland to tell her that she would not be able to make it in to work at her scheduled time. Lilly told Complainant that she would try to find someone to cover for her but that Complainant was expected to be there for her evening shift if a replacement could not be found. Lilly and Complainant agreed that Complainant would call Lilly back at 3 p.m. to determine if anyone was found to cover her shift. (Testimony of Complainant, Lilly, M. Morrell)
13) Complainant called Lilly at 3 p.m. from Roseburg, Oregon, and was advised that Lilly was unable to find a replacement for her and that she was expected to show up for her shift. Complainant was told that if she didn´t show up, she "probably" would be fired. (Testimony of Complainant, Lilly)
14) Complainant did not show up for her scheduled shift and did not come into the restaurant at all until approximately one week later to pick up her paycheck. After Complainant failed to appear for her shift and made no effort to communicate with Lilly or Respondent thereafter, Lilly eventually considered Complainant fired. (Testimony of Lilly)
15) During Complainant´s employment with Respondent, neither Respondent nor his brothers treated her badly nor did they discuss her workers´ compensation claim with her. (Testimony of Complainant)
16) Complainant´s claim was denied on June 27, 1994. (Exhibit A-5)
17) Complainant´s testimony was not entirely credible. On important points her testimony was internally and logically inconsistent. For example, when testifying to her damages she stated that she averaged $60 per week in tips. In response to a direct question, she responded that $30 to $40 was the most she ever made in a day. After the noon break, she testified that she was "confused" during her earlier testimony and that she did not average $60 per week but rather made $60 a day in tips. Her initial tip testimony was specific and straightforward in response to specific and straightforward questions. In contrast, her revised testimony was vague and evasive and she failed to reconcile her distinctly different statements regarding her daily tip earnings. The ALJ was left with the perception that she was attempting to inflate her earnings rather than correct a mistake and, as a consequence, Complainant was not believed on that point. In more testimony related to damages, Complainant, at one point, claimed she was physically capable of working as a waitress after she left her employment with Respondent. At another point she claimed she wouldn´t last a week as a waitress because of the continued pain in her hands. In one breath she stated she looked for work after she left Respondent´s employment, in the next breath she intimated that it was futile to look for work because she was "in limbo" over her workers´ compensation claim and "who´s going to hire somebody who is in the middle of a worker´s comp claim?" Her inconsistencies regarding her physical abilities rendered her testimony useless as evidence that she suffered economic harm as a result of losing her job. On another important point, Complainant claimed that she was not scheduled to work at 5:30 p.m. on Friday, June 17, 1994, and that Lilly had arranged for someone to work for her that night as well as the previous shifts of that week. However, she admitted that she arranged for time off from work for an extended period from June 12 through June 16, and that she told Lilly she planned to work her scheduled shift on Friday, June 17. She also admitted that she called Lilly about six hours before her Friday shift was to begin and told her that she wouldn´t be able to make it in time for her shift. Complainant´s husband testified that Complainant called Lilly before noon on Friday after she realized that by the time she made a stop in Roseburg to pick up her dog she would not be able to make it to Klamath Falls in time for her scheduled shift. He also recalled that during the 11:45 a.m. conversation between Complainant and Lilly, Complainant was told that if Lilly was unable to find someone to work for her, Complainant was expected to be there for her scheduled shift. If she had prearranged to cover the shift and the shift was indeed covered, as she claimed, logic dictates that the call would have been unnecessary. Complainant´s actions and admissions contradict her claim that she prearranged with Lilly to have her Friday shift covered by someone else and she was not believed on that point. In other testimony and during the initial investigation, Complainant claimed that when she came back to work on May 14 she was "treated like crap" and told by Lilly that she was going to be treated as a new hire and put to work as a hostess with a cut in hours. Her statements were not corroborated by any other evidence and, indeed, the entire record establishes that she returned to her previous job as a waitress with no apparent problem and no reduction in hours. On a less material point, she testified that when she was referred to Dr. Adams he told her that she had Renaud´s Syndrome and that her work was the major contributing cause for her symptoms. Reliable evidence in the record shows, however, that Dr. Adams initially diagnosed tendinitis and his chart notes did not reflect any diagnosis of Renaud´s syndrome until after Complainant´s workers´ compensation claim was denied which was three months after her initial visit with Dr. Adams. (See Finding of Fact # 8.) Complainant´s testimony, overall, was inconsistent, uncorroborated for the most part, and self-serving. The Forum has accordingly credited only those portions of her testimony which are verified by or not inconsistent with other credible evidence in the record.
18) Dee Lilly´s testimony was generally credible. She responded to questions without hesitation and made no effort to avoid any issue. She did acknowledge a memory deficiency, which was confirmed by tapes containing the testimony she gave during an unemployment hearing in August, 1994, and which generally involved how far away and where Complainant was when she called from Portland and Roseburg on June 17, 1994. The assessment of Lilly´s credibility was enhanced, however, by her demonstration of forthrightness in making at least one admission against interest in her testimony regarding her feelings about Complainant´s claim of injury at the time the claim was filed. Accordingly, the Forum does not find her discredited or impeached on any material point.
19) Dr. Adams´ testifimony did not address any salient points. He admitted that he had only one contact with Respondent and that it consisted of one short conversation with Lilly for which he could not remember any specifics, thus his opinion regarding Respondent´s attitude toward injured workers was not given any weight.
20) Michael Morrell´s testimony had a script-like quality and he appeared to be influenced by his relationship with Complainant. Consequently, his testimony was not given much weight except where it was verified by or not inconsistent with other credible testimony.
21) Respondent Tony Chan´s testimony was credible. He gave no indication by his demeanor or testimony that he held animosity toward injured workers or toward Complainant in particular because of her alleged injury. His testimony that he did not discharge Complainant on June 17 was believable. Respondent was not impeached and there is no reason to consider his testimony other than credible.
22) Denise Sinclair was a credible witness. Her demeanor was calm and forthright. She was not discredited or impeached and there is no reason to consider her testimony other than credible.
 
 
1) At all times material, Respondent employed six or more persons within the state of Oregon.
2) Complainant was a worker employed by Respondent between October 1, 1993, and June 17, 1994.
3) On April 1, 1994, Complainant filed a workers´ compensation claim for an occupational disease she alleged arose out of her work with Respondent. She also applied for and received workers´ compensation benefits.
4) Complainant was off work from April 1 until May 14, 1994, when she was released by her doctor to return to work.
5) Complainant was scheduled for an IME in Portland on June 14 and 15, 1994, her regularly scheduled days off. She asked for and received additional time off before and after the IME to visit relatives in Washington. She was scheduled to return for her 5:30 p.m. shift on Friday, June 17, 1994. She did not return at that time.
6) Complainant was considered discharged by Lilly when she did not appear for her scheduled shift or for a week thereafter.
7) Complainant was not discharged because she filed a workers´ compensation claim or applied for workers´ compensation benefits.
 
 
1) At all times material, Respondent was an employer subject to the provisions of ORS 659.010 to 659.110 and ORS 659.400 to 659.435.
2) At all times material, Complainant was Respondent´s "worker" within the meaning of ORS 659.410 and OAR 839-06-105(4)(a).
3) The Commissioner of the Bureau of Labor and Industries has jurisdiction over the persons and subject matter herein and the authority to eliminate the effects of any unlawful employment practice found. ORS 659.040, 659.050, and 659.435.
4) ORS 659.410 provides:
"It is an unlawful employment practice for an employer to discriminate against a worker with respect to hire or tenure or any term or condition of employment because the worker has applied for benefits or invoked or utilized the procedures provided for in ORS 656.001 to 656.794 and 656.802 to 656.807, or of 659.400 to 659.435 or has given testimony under the provisions of such sections."
Respondent did not violate ORS 659.410 as charged.
5) Pursuant to ORS 659.060(3), the Commissioner of the Bureau of Labor and Industries shall issue an order dismissing the charge and the complaint against any respondent not found to have engaged in any unlawful practice charged.
 
 
The Agency alleged in its charges that Respondent violated ORS 659.410 by discharging Complainant because she applied for benefits or utilized the workers´ compensation procedures. Whether Respondent violated the statute or not turns on credibility. To establish a prima facie case, the Agency must prove by credible evidence the following elements:
1) Complainant´s application for benefits or utilization of the workers´ compensation procedures;
2) Respondent´s knowledge that Complainant applied for benefits or utilized the workers´ compensation procedures;
3) The barring or discharge of Complainant by Respondent;
4) A causal connection between Complainant´s filing of the claim and the termination of Complainant´s employment;
5) Harm resulting from Respondent´s action.
There is no dispute that Complainant utilized the workers´ compensation procedures by filing a workers´ compensation claim and applying for benefits which she received until her claim was denied on June 27, 1994. In addition, the evidence establishes that Respondent was aware that Complainant had filed the claim. With regard to Complainant´s termination, however, the evidence is somewhat problematic. Complainant claimed she was told by Lilly during the second phone call on June 17 at 3 p.m. that she would be fired if she did not make it in time for her shift. Lilly testified that she said to Complainant that she would "probably" be fired if she failed to appear for her shift. What is not in dispute is that Complainant did not appear for that particular shift but came in a week later to pick up her paycheck. Although there is no evidence that anything was ever said to Complainant regarding her job status after the 3 p.m. phone call, Lilly later considered and characterized Complainant´s departure as a discharge. Consequently, this Forum concludes that Complainant was discharged de facto.
Respondent´s liability turns on whether there is a causal connection between Complainant´s discharge and the fact that she filed a workers´ compensation claim. To prevail, the Agency must present credible evidence establishing that relationship. This Forum has evaluated the testimony of Complainant and those Agency witnesses whose testimony is relevant to causation. That which was inconsistent with other statements of the witness, or with other facts established in the record, has been rejected. The resulting findings simply do not support the Agency´s charges. It is not possible to conclude, based on a preponderance of the evidence, that Complainant was discharged because of her utilization of the workers´ compensation procedures or her application for benefits. When Complainant filed the claim, Lilly admitted that initially she was upset and that she questioned Complainant´s honesty. However, there was no credible evidence that Lilly exhibited any animosity toward Complainant during the period she was off work or after she returned to work in May. The evidence showed that Complainant returned to her regular job with no cut in hours or pay and when she made timely arrangements in June to take additional time off during the week of her IME she was accommodated by Respondent. Complainant´s claim that Lilly arranged to cover Complainant´s Friday night shift in addition to the time Complainant requested to be off simply did not square with the evidence in the record. There was absolutely no credible evidence to show a correlation between the fact that Complainant had filed a workers´ compensation claim and the fact that Lilly was upset and threatened termination when Complainant called for the second time from Roseburg. In this case, a preponderance of the evidence shows that any motivation that Lilly or Respondent might have had to end the employment relationship with Complainant was driven by the events that transpired over the course of the day on June 17, and not because of a discriminatory animus toward Complainant. Accordingly, the Agency has not sustained its burden of proof.
 
 
NOW, THEREFORE, as Respondent has not been found to have engaged in any unlawful practice charged, the Complaint and the Specific Charges filed against Respondent are hereby dismissed according to the provisions of ORS 659.060(3).
 
DATED this __________ day of ________________________, 1996.
 
JACK ROBERTS
Commissioner
Bureau of Labor and Industries
 
JUDICIAL NOTICE
 
Pursuant to ORS Chapter 183, you are entitled to judicial review of this Final Order. To obtain judicial review, you must file a Petition for Judicial Review with the Court of Appeals in Salem, Oregon, within sixty (60) days of the issuance of this Order.
 
If you file a Petition for Judicial Review,
you must also serve a copy of the Petition
on this Agency and the Department of Justice - Appellate Division
at the following addresses:
 
Bureau of Labor and Industries
Hearings Unit
State Office Building, Ste. # 1005
800 NE Oregon St, # 32
Portland, Oregon 97232-2162
 
 
Department of Justice
Appellate Division
400 Justice Building
Salem, Oregon 97310
 
CERTIFIED TO BE A TRUE AND
CORRECT COPY OF THE ORIGINAL
AND OF A WHOLE THEREOF. ____________________________________
 
 
EXCEPTIONS NOTICE
 
The Commissioner of the Bureau of Labor and Industries can adopt all or any part of this Proposed Order in the Final Order. The Commissioner may provide in the Final Order for a different determination of liability, damages, means of enforcement, or where appropriate, penalties, than is set forth in this Proposed Order.
 
Pursuant to ORS Chapter 183, and OAR 839-50-380, you are entitled to file exceptions to this Proposed Order. In order to be considered, exceptions must be filed within ten (10) days from the date of issuance of this Proposed Order.
 
If you file exceptions to this Proposed Order, THEY MUST BE FILED AT THE FOLLOWING ADDRESS:
 
 
Bureau of Labor and Industries
Hearings Unit
State Office Building, Ste. # 1005
800 NE Oregon St, # 32
Portland, Oregon 97232-2162