Williams v. Waterway Terminals Co.

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: BUTTLER; ROSSMAN
• Citation: Williams v. Waterway Terminals Co., 686 P.2d 441, 69 Or.App. 388 (Or. App. 1984)
• Decision Date: 06 November 1984
• Parties: Hardie WILLIAMS, Appellant, v. WATERWAY TERMINALS COMPANY, an Oregon corporation, Respondent. CA A8108-05154; CA A27781.

Page 441

686 P.2d 441

69 Or.App. 388

Hardie WILLIAMS, Appellant, v. WATERWAY TERMINALS COMPANY, an Oregon corporation, Respondent.

CA A8108-05154; CA A27781.

Court of Appeals of Oregon.

Argued and Submitted Dec. 16, 1983.

Decided Aug. 8, 1984.

Reconsideration Denied Sept. 28, 1984.

Review Allowed Nov. 6, 1984.

Douglas A. Swanson, Portland, argued the cause for appellant. With him on the briefs was Royce, Swanson & Thomas, Portland.

Paula B. Weiss, Portland, argued the cause for respondent. With her on the brief were Richard F. Liebman and Spears, Lubersky, Campbell, Pledsoe, Anderson & Young, Portland.

Before BUTTLER, P.J., and WARREN and ROSSMAN, JJ.

BUTTLER, Presiding Judge.

Plaintiff appeals from a judgment dismissing his complaint after defendant's motion for summary judgment was granted. He alleged that defendant committed an unlawful employment practice by refusing to reinstate him following his recovery from a compensable injury in violation of ORS 659.415. Plaintiff sought back wages, reimbursement for medical expenses that would have been covered by defendant's group health insurance had plaintiff been reinstated promptly, and attorney fees. Defendant answered, denying that it had committed an unlawful employment practice and asserting three affirmative defenses.

Defendant moved for summary judgment on the ground that the trial court lacked jurisdiction, either because plaintiff had no private right of action or because his claim was time-barred. The trial court granted defendant's motion without specifying its reason for doing so. We affirm.

The facts are undisputed. Plaintiff, while employed by defendant, sustained a compensable injury on September 17, 1976, and was temporarily totally disabled. Sometime prior to September 25, 1977, he discovered indirectly that defendant had discharged him. ¹ He continued to receive workers' compensation benefits, and on May 12, 1980, he demanded that defendant reinstate him to his former position or to another position which was available and suitable. Two days later, plaintiff presented defendant with a certificate from his physician indicating that he was able to return to his regular employment as of May 12, 1980. Initially, defendant refused to rehire plaintiff, who then filed a complaint with the Bureau of Labor and Industries (Bureau) on May 27, 1980. On June 10, 1980, defendant rehired plaintiff. However, the complaint was not dismissed, and on May 27, 1981, the Bureau issued its Private Right of Action Notice. Plaintiff filed this civil action in August, 1981.

Plaintiff's claim is based solely on defendant's failure to reinstate him under ORS 659.415(1), thereby giving rise to a civil action under ORS 659.121(1). At the relevant time, ORS 659.415(1) provided:

"A worker who has sustained a compensable injury shall be reinstated by the worker's employer to the worker's former position of employment upon demand for such reinstatement, provided that the position is available and the worker is not disabled from performing the duties of such position. If the former position is not available, the worker shall be reinstated in any other position which is available and suitable. 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."

ORS 659.121(1), which allows a civil action for violations of ORS 659.415(1), provided: ²

"Any person claiming to be aggrieved by an unlawful employment practice prohibited by ORS * * * 659.410, 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. * * *"

The issue in this appeal is whether plaintiff's reinstatement right under ORS 659.415(1) survived his discharge. Plaintiff does not claim that his discharge was unlawful; rather, he contends that it is irrelevant to his right to reinstatement under ORS 659.415(1). If plaintiff was discharged for having filed a workers' compensation claim, he had an administrative remedy, ³ ORS 659.410; however, that remedy was barred no later than September, 1978. ORS 659.040. It is in apparent recognition of this problem that plaintiff urges that his discharge, or the reasons for it, is irrelevant to his claim under ORS 659.415(1), which he claims gives him the absolute right to reinstatement. ⁴

Accordingly, on this record we assume that plaintiff's discharge, whether lawful or unlawful, accomplished a complete severance of his employment relationship with defendant and necessarily terminated any reinstatement right that plaintiff might have had. Dobie v. Liberty Homes, 53 Or.App. 366, 632 P.2d 449 (1981).

In Dobie we decided when a claim for relief accrues under ORS 659.415. There the plaintiff sustained an on-the-job injury on April 13, 1978, and was off work for two days. When he attempted to return to work on April 17, 1978, he was told that his employment was terminated. He checked periodically with his employer to determine if any jobs were available, and was not reinstated. On September 25, 1979, he filed an action against his former employer, contending, among other things, that the employer's failure to reinstate him was a continuing act and, therefore, his action was timely. We held that the action was time-barred, because

" * * * [a]ny unlawful employment practice occurred at the time he was terminated. After his termination, he was in no different position than other applicants for employment when he periodically applied for a job in defendant's plant. * * * " 53 Or.App. at 371, 632 P.2d 449.

Although Dobie is distinguishable, the principle it enunciates is not. Plaintiff's discharge was the key event; ⁵ if it was the result of an unlawful employment practice under ORS 659.410, it could have been remedied by filing a complaint with the Commissioner of Labor within one year after it occurred. After that limitation period had run, plaintiff had no job to which he could claim the right to be reinstated. The loss of his reinstatement right was an effect of his discharge. ⁶

Plaintiff's reliance on Vaughn v. Pacific Northwest Bell Telephone, 289 Or. 73, 611 P.2d 281 (1980), is misplaced. In dicta, the court discussed two scenarios. In the first, the worker's demand for reinstatement is refused. Thus the worker is discharged after the demand for reinstatement. Under the second scenario, the worker is discharged and then demands reinstatement. Although the court said that the effect under both scenarios was identical, "because 'nonreinstatement' and 'discharge' mean the same thing to a worker," it went on to state:

" * * * It might seem that ORS 659.415 requires reinstatement of the worker even if the employer has just cause to 'discharge' by refusing to reinstate, but, as will appear later, nothing in ORS Chapter 659 prevents an employer from discharging a worker for just cause. * * * " 289 Or. at 79-80, 611 P.2d 281.

Thus Vaughn is not authority for the proposition that reinstatement rights under ORS 659.415 survive a lawful discharge. ⁷

Affirmed.

ROSSMAN, Judge, dissenting.

I respectfully dissent. I have a deep concern that the majority opinion misconstrues ORS 659.415(1) and the intent of Oregon's laws that prohibit employment discrimination against disabled workers who file workers' compensation claims.

As I see it, the issue in this case is when, if ever, did plaintiff's claim for relief under ORS 659.415(1) accrue? The beginning point in this inquiry is that statute, which, at the relevant time, provided in part:

"A worker who has sustained a compensable injury shall be reinstated by the worker's employer to the worker's former position of employment upon demand for such reinstatement, provided that the position is available and the worker is not disabled from performing the duties of such position. If the former position is not available, the worker shall be reinstated in any other position which is available and suitable. * * * " (Emphasis supplied.)

The majority opinion accepts the employer's argument that plaintiff's previous discharge terminated his reinstatement right and that plaintiff's claim for relief accrued when he was terminated. The problems with this interpretation are threefold.

First, it ignores the plain wording of ORS 659.415(1), which states that the worker "shall be reinstated * * * upon demand for reinstatement, provided that the position is available and the worker is not disabled." (Emphasis supplied.) Under defendant's interpretation, plaintiff would have to have demanded reinstatement when he was terminated, but that occurred while he was still disabled. Thus, defendant could have correctly refused to reinstate plaintiff, because he would have been unable to perform his former duties. Common sense dictates that an employe should not be forced to demand reinstatement before he has recovered from his disability. See Carney v. Guard Publishing Co., 48 Or.App. 147, 153 n. 4, 616 P.2d 548, modified, 48 Or.App. 927, 630 P.2d 867, rev. den. 290 Or. 171 (1980).

The second problem with the majority's opinion is that it ignores the relationship between ORS 659.415(1) and 659.410. ORS 659.410 prohibits an employer from discriminating against workers who file workers' compensation claims, and ORS 659.415(1) requires the employer to reinstate the recovered worker. Although ORS 659.415(1) is narrower in scope than ORS 659.410, the legislature, in enacting both sections, intended to create separate and independent remedies. Assuming that the other requirements of ORS 659.415(1) are met, the statute requires reinstatement unless the employer has just cause to terminate the employe. It may be that defendant had just cause for terminating plaintiff in 1977; however, that issue must be raised as an...