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Replacing injured worker discriminatory: Court


An employer failed to show that an injured worker’s absence caused a business impairment and that it therefore did not engage in discrimination when it terminated the worker, said the Hawaii Supreme Court on Monday.

In Matter of BCI Coca-Cola Bottling Co. of Los Angeles Inc. v. Murakami, a five-judge panel unanimously vacated and remanded a circuit court’s decision in favor of the employer.

In 2010, driver Tammy Josue filed a complaint with the Hawaii Department of Labor and Industrial Relations alleging that her employer, Los Angeles-based BCI Coca-Cola Bottling Co.  of Los Angeles Inc. discriminated against her on the basis of her work injury in violation of Hawaii state law.

Ms. Josue claimed that on May 29, 2009, she said she was injured in the course of her employment and placed on disability leave. When she attempted to resume work in September of that year, the day after her doctor authorized her restriction-free return to work, she said she was told her employer had hired another employee to permanently fill her position. The company offered several other positions, which she said she rejected because she either could not meet the physical requirements of the positions due to a prior shoulder injury, the positions required experience or certifications that she did not possess, or the positions were downgrades from her pre-injury employment. She contended that Coca-Cola unlawfully discriminated against her based on her injury.

Coca-Cola claimed that the vacancy had created a hardship and moved for summary judgment arguing that her claim was untimely.

A hearing officer held that the company knew or should have known that Ms. Josue would one day be able to return to work without restrictions and discriminated against her solely because of a compensable work injury. Coca-Cola appealed, but the director or the Hawaii Department of Labor affirmed the hearing officer’s decision. The company then appealed to the Circuit Court of the First Circuit, which held that Ms. Josue was discriminated against not because of her injury, but because the position had been filled, and reversed the director’s decision. Ms. Josue and the director appealed to the Intermediate Court of Appeals, which affirmed, and appealed again.

The Supreme Court of Hawaii reversed and remanded the decision. The court held that it undisputed that Ms. Josue suffered a work injury and was placed on a leave of absence, and that Coca-Cola did not reinstate her to a position equivalent to or better than her pre-injury position upon her return to work after the injury, but instead the company offered her only positions that she either could not perform or that amounted to downgrades from her prior employment.

“Such a decision is the precise kind of adverse employment action that prompted the legislature to specifically add the term ‘discriminate’ to” the statutes, said the court. Although Coca-Cola argued it filled the position out of business necessity, the court noted that to demonstrate a legitimate reason for an adverse employment action, an employer must provide evidence that its action was the only reasonably means by which the company could remedy its impairment. The court found that based on the evidence, Coca-Cola failed to produce any evidence that a temporary employee would not have been able to fulfill Ms. Josue’s duties during her absence, or that the company even considered the possibility. The court also agreed with the director that there was substantial evidence in the record to support the conclusion that Coca-Cola failed to meet its burden to prove that there were no feasible alternatives to refusing to reinstate Ms. Josue to a position at least equivalent to the one she left because of her work injury.

As a result, the court vacated the circuit court’s decision and remanded the case to the director.

Attorneys in the case did not immediately respond to requests for comment.



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