Tuesday, February 17, 2015

My President's Day

It's not often that I actually take a day off. I usually do at least some work on a holiday and the amount is just measured by volume.

President's Day was slightly different. I slept in (okay, some of you are not impressed with a 5 a.m. wake up time, but that's 2 extra hours of sleep for me!). And I had no time schedule for the day; usually on weekends, I may work 4 or 6 hours total, I will also have obligations scheduled.

Living in Southern California, and in particular Ventura County, I am appreciably spoiled by unforgivingly good weather, wide open space, supreme agriculture, mountains that rise to 8,000 feet from the Pacific Ocean. It is unbelievably good living and begs recreation whether you cycle, surf, hike, motorcycle, or fly airplanes.

Hey - I like to do all of that! I reckon that's why I've made Ventura County my home for 35 years...

Freedom, as Janis Joplin sang, is having nothing to lose - so yesterday I decided to set out on a bicycle ride with no clear direction and no clear intention other than to enjoy the morning because with no schedule, and no commitments I didn't feel I had anything to lose.


From 2007 to 2008, Gilberto Rincones worked as a technician for WHM, a maintenance company that builds, removes, repairs and installs catalyst systems used in refineries and chemical plants. WHM contracted with Exxon for work at its Baytown facility.

Under terms of the contract, Exxon required all employees who work at the plant to submit to random drug screens. WHM contracted with DISA, a substance abuse administrator approved by Exxon, to conduct the testing.

DISA performed a drug test on Rincones, which yielded a positive result for marijuana use. Rincones denied using marijuana and tried to submit a new sample for testing, but DISA refused. WHM informed Rincones that he was no longer eligible to work at the Baytown plant.


Like the Door's Jim Morrison, I "took a look around me, which way the wind blow?"

That's where I went - took the slight tail wind out of the west and headed first down to Malibu to Sycamore Cove. Pacific Coast Highway was closed a couple months ago following severe slides. It had been closed at Point Mugu, but recently was opened down to Sycamore Canyon State Park.

It was overcast when I departed, but sometimes the Malibu coast will break up the cloud layer, and as I rounded Mugu rock I was treated with a most biblical scene - rays of light shining through the clouds onto the water with the precipice of the Santa Monica Mountains falling into the sea.
Sun shines on Sycamore Cove, Malibu

I stopped to take a picture and enjoy the spectacle ... and thought about the weather broadcast on the news the evening before about the North East and the huge storms, snow and freezing weather that region was under. I hoped that the California contingency (Alex Swedlow of CWCI, Saul Allweiss of the law firm that is his name, me and a few others) will bring some of our good weather fortune to Boston March 5 and 6 for the Workers' Compensation Research Institute's annual conference.

I turned around at Sycamore Cove - the destruction from the mudslides a couple months ago was still very evident the entire route, and there were still large cranes just around the Sycamore Cove bend. Trucks with loads of granite passed by every few minutes.


Rincones went to a different laboratory where he was tested for drug and alcohol use. The results were negative. Rincones contacted WHM to prove his innocence, but the company refused to consider a second test and told Rincones to "work it out" with DISA.

According to Rincones, neither WHM nor DISA disclosed to him that they had a return-to-work policy and procedure for employees who tested positive for drug and alcohol use.

Rincones filed a claim for unemployment benefits. WHM told the Texas Workforce Commission that he had been fired for violating the company's substance abuse policies.


I headed up towards Camarillo, home to the spacious and luxuriously appointed offices of WorkCompCentral's world wide headquarters. Actually that office space is old and dated - we move into new space in April!

Through Camarillo the back way, I ended up going through Somis (famous nut house and I'm not talking a mental institution - that used to be Camarillo but is now a university) and Bradley Road.

Bradley Road is one of the most picturesque back country farm roads in Ventura County with orchards of citrus and avocado as far as the eye can see and very impressive ranches. In a few months I'm going on a motorcycle tour of the Tuscany region of Italy, and I imagine that it will look much the same...

I made a left onto Balcom Canyon Road. Balcom is one of the steepest roads around and it is used for the Tour of California bicycle race because it is the point where the peloton gets broken up for good - the top riders ascend at lung busting, leg ripping speeds. Most of us mortals are happy just to get to the top.

And at the top is a spectacular view of the Santa Clara river valley with Fillmore and the Sespe off in the distance. I stopped again for the photo op.
Top of Balcom Cyn, towards Fillmore and Sespe

By the way - I NEVER stop for anything when I ride. When I ride I'm on a mission. I'm usually on a time schedule and I don't like to break up my pace or cool down.

But the beauty of President's Day in Ventura County was more powerful than my compulsivity!


Rincones filed a lawsuit against WHM, Exxon, DISA and other defendants, alleging racial discrimination, tortious interference with a contract, negligence, defamation and other wrongdoing. He alleged that another employee who was not of Mexican descent had tested positive for drug use but was allowed to return to work after undergoing rehabilitation and taking another drug test.

It was alleged that WHM's human resources director had told the "white" employee about its return-to-work policy, whereas in Ricones' case, the HR director told him "what's done is done and you can't fix it."

The trial court granted summary judgment to the defendants. Rincones appealed.


Down the back side of Balcom at about 48 mph, and into the Santa Clara river valley towards Santa Paula, home of world famous Santa Paula Airport where the experimental airplane culture dominates and where actor Steve McQueen maintained his passion.

I stopped again for a picture - this time of the monument dedicated to the officers that lost their lives warning the town of the St. Francis Dam collapse in 1928. I reflected for a moment (I was after all cycling...) and then headed off to Ventura along Foothill Road back towards the overcast.
St Francis Dam Disaster memorial in Santa Paula

Eventually, after 82 miles and 4 hours, I was back home, a bit tired, mostly hungry, and hugely fulfilled.

For those four hours I didn't think much about workers' compensation, but when I finally showered, had some food and rested, I thought about how fortunate I am to live where I do, to be able to do what I do, to spend time pursuing life.


Among his arguments was that codefendant Exxon could not avail itself to the exclusivity provisions of the Texas Workers' Compensation Act because he was not an employee of the company.

Exxon was named a defendant in the lawsuit because it had obligated WHM to implement and enforce its drug-testing program and insisted that his employer use a third-party administrator that Exxon selected.

Exxon argued that Rincones could not pursue a negligence claim against it because he had signed an agreement to accept its drug-testing policy. Even if Rincones could prove a negligence claim, Exxon argued, it was protected by the exclusive remedy provisions of the Workers' Compensation Act.

On appeal the court found that Exxon owed Rincones a duty to use reasonable care in creating, enforcing and implementing the substance abuse policies that it required WHM and DISA to follow. And Exxon could not avail itself to the exclusivity provisions of the Workers' Compensation Act because it had disavowed any employment relationship with Rincones.

The trial court had erred in granting summary judgment against Rincones' negligence claim on that basis, the appellate panel concluded.


In celebration of such good fortune, I repeated the route in the afternoon on my motorcycle.


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