Shaw v. Doyle Milling Co., Inc.

• Jurisdiction: Oregon
• Court: Oregon Supreme Court
• Writing for the Court: LENT
• Citation: Shaw v. Doyle Milling Co., Inc., 683 P.2d 82, 297 Or. 251 (Or. 1984)
• Decision Date: 24 July 1984
• Docket Number: No. 81-239,81-239
• Parties: , 116 L.R.R.M. (BNA) 2773 Gerald W. SHAW, Respondent on Review, v. DOYLE MILLING COMPANY, INC., Petitioner on Review. ; CA A25795; SC S30279.

Page 82

683 P.2d 82

297 Or. 251, 116 L.R.R.M. (BNA) 2773

Gerald W. SHAW, Respondent on Review, v. DOYLE MILLING COMPANY, INC., Petitioner on Review.

No. 81-239; CA A25795; SC S30279.

Supreme Court of Oregon In Banc.

Argued and Submitted April 5, 1984.

Decided June 5, 1984.

Rehearing Denied July 24, 1984.

John A. Hudson, Eugene, argued the cause for petitioner on review. With him on the briefs was Hudson & Kearney, P.C., Eugene.

Michael R. Stebbins, North Bend, argued the cause for respondent on review. With him on the brief was Hayner, Waring, Stebbins & Coffey, North Bend.

LENT, Justice.

This is a suit for injunctive and other relief under ORS 659.121 for an alleged violation of ORS 659.415. At the time with which this case is concerned, those statutes provided:

ORS 659.121(1):

"Any person claiming to be aggrieved by an unlawful employment practice prohibited by ORS * * * 659.415 * * * may file a civil suit in circuit court for injunctive relief and the court may order such other equitable relief as may be appropriate, including but not limited to reinstatement or the hiring of employes with or without back pay. * * * In any suit brought under this subsection, the court may allow the prevailing party costs and reasonable attorney fees."

ORS 659.415:

"(1) A worker who has sustained a compensable injury shall be reinstated by the worker's employer to the worker's former position of employment or employment which is available and suitable upon demand for such reinstatement, provided that the worker is not disabled from performing the duties of such position. A certificate by a duly licensed physician that the physician approves the worker's return to the worker's regular employment shall be prima facie evidence that the worker is able to perform such duties.

"(2) Any violation of this section is an unlawful employment practice."

The general issue is whether an employer must reinstate a worker to his former position of employment under ORS 659.415, where the employer has hired another employee to fill the position during the absence of the worker who had exercised his rights under the Workers' Compensation Law. We hold that it must. The particular issue is whether this plaintiff (Shaw) had to prove that his demand for reinstatement would not have been denied "but for" unlawful discriminatory motive on the part of defendant (Employer). We hold that he did not.

Shaw commenced employment at Employer's veneer mill in September, 1978. He worked as leadman ¹ on the greenchain. The mill had periodic temporary layoffs. On November 14, 1979, Shaw and the other employees were laid off for an indefinite period. On December 10, 1979, Shaw applied for workers' compensation benefits for a compensable injury. On December 11, 1979, the mill reopened, but Shaw did not return to work because of his injury. On February 13, 1980, Shaw was released by his physician to return to his regular employment. On that same day he made demand for reinstatement to his former position. While he was off work due to the compensable injury, Employer had replaced him with another worker as leadman on the greenchain. Employer failed to reinstate Shaw to any position.

Shaw again became unable to work on September 26, 1980. There is no evidence that Shaw has again been released by a physician to return to work. By the date of trial, Employer had ceased ownership and operation of the mill. For those reasons, reinstatement of Shaw by the circuit court to his former position was then impossible.

The circuit court calculated the number of working days between February 13, 1980, and September 26, 1980, and subtracted days the mill was shut down. The court multiplied the result by Shaw's former daily wage. From the product, the sums for unemployment benefits and compensation from Shaw's other employment during the period were subtracted. The result was the amount the trial court found as lost wages. This amount, $4,152.51, was awarded to Shaw, in addition to $4,473.26 in attorney fees, costs and disbursements. The Court of Appeals, 65 Or.App. 814, 671 P.2d 1211, affirmed without opinion.

This court has recognized a general rule that:

"[I]n the absence of a contract or statute to the contrary, an employer may discharge an employee at any time and for any cause."

Yartzoff v. Democrat-Herald Publishing Co., 281 Or. 651, 655, 576 P.2d 356 (1978). ² ORS 659.415 requires an employer to reinstate an injured worker to the worker's former position unless he is disabled from performing it. This court has equated a refusal to reinstate with a "discharge." Vaughn v. Pacific Northwest Bell Telephone, 289 Or. 73, 79, 611 P.2d 281 (1980). Thus, ORS 659.415 constitutes a statutory exception to the general rule that an employer may discharge a worker at any time and for any cause.

Employer argues that where filling the position with another worker is necessary to operation of the enterprise, the situation is the same as would be the case where the position has been completely abolished by management utilization of technological advances. The latter situation is not before us and is not here decided. As to the situation that is before us, Employer argues that the legislature could not have intended reinstatement where a short-time employee is disabled by job injury, is off work two years and then returns to claim the position from one who has been necessarily employed in that position during that period. That argument is addressed to legislative wisdom, and it is not for this court to respond.

The main purpose of ORS 659.415 is to guarantee that an employer shall not discriminate against a disabled worker for exercising the worker's rights under the Workers' Compensation Law. This statute is but one of a set of statutes reflecting the legislature's concern to prohibit employment discrimination on the basis of handicap. Vaughn v. Pacific Northwest Bell Telephone, supra, 289 Or. at 88, 611 P.2d 281. Where the position still exists, although filled by another employee, the returning employee is entitled by the statutory text to reinstatement. To hold otherwise would permit an employer unilaterally to vitiate the mandate of ORS 659.415 and to thwart the broader legislative scheme to afford employment opportunity and security to the handicapped.

Employer argues that under our decision in Vaughn v. Pacific Northwest Bell Telephone, supra, Shaw cannot prevail because he did not prove...