Lindsay v. Great Northern Paper Co.

SCOLNIK, Justice,

with whom McKUSICK, Chief Justice, joins, dissenting.

I respectfully dissent.

The petitioner in this case alleged that his suspension from work violated 39 M.R. S.A. § 111 (1978), which provides in pertinent part: “No employee shall be discriminated against by any employer in any way for ... asserting any claim under this Act.” There is no question that Lindsay’s assertion of his right not to be forced into employment while physically incapacitated due to a work-related injury constituted a “claim” under the Workers’ Compensation Act within the broad meaning of that term. See Delano v. City of South Portland, 405 A.2d 222, 227 (Me.1979). The sole issue before the court is whether the petitioner was “discriminated” against by his employer for asserting his claim within the meaning of Section 111. I conclude that the petitioner has suffered no discrimination.

Although “[t]he concept of ‘discrimination’ ... is susceptible of varying interpretations,” Regents of University of California v. Bakke, 438 U.S. 265, 284 , 98 S.Ct. 2733, 2745 , 57 L.Ed.2d 750 (1978) (Powell, J.), that term at the very least implies the accordance of differential treatment to persons or groups of persons that are in similar conditions or circumstances. In the employment context, the U.S. Supreme Court has noted that an employer “discriminates” against an employee “only when he treats that employee less favorably than he treats others similarly situated.” Whirlpool Corp. v. Marshall, 445 U.S. 1, 19 , 100 S.Ct. 883, 894 , 63 L.Ed.2d 154 (1980) (footnote omitted). However, “an employment practice that is applied evenhandedly to all employees represents a neutral policy that does not constitute discrimination, particularly if it is based on legitimate business concerns ...” Duncan v. New York State Developmental Center, 63 N.Y.2d 128, 134 , 481 N.Y.S.2d 22, 25 , 470 N.E.2d 820, 823 (1984), rev’g 93 A.D.2d 242 , 463 N.Y.S.2d 540 (App.Div.1983).

The employment practice in use at Great Northern Paper Company is one such example of a neutral policy. The absenteeism policy in effect at the time of the petitioner’s suspension subjects any employee to various disciplinary measures whenever that employee exceeds a specified number of absences, within a particular time period. Exempted from this class of employees are those whose absences were attributable to funeral leave, jury duty, union business or military service. The rationale underlying the absenteeism policy is to require that a certain number of employees appear for work on a routine and predictable basis at a given time. A requirement that employees be consistently present at work in order to maintain the continued operation of the employer’s business is a legitimate business concern. See, e.g., Duncan, 481 N.Y.S.2d at 25 (“An employer should be permitted to take reasonable steps to secure a steady, reliable, and adequate work force.”).

The court would include an employee’s absence due to work-related injuries as an additional implied exception to the employer’s absenteeism discipline policy. This exceeds the scope of the statute. The statute requires only that the employer not discriminate against the employee for assert *155 ing a workers’ compensation claim. In the absence of a showing of discrimination, the employer is free to establish legitimate business practices for the safe and efficient operation of his or her enterprise. Moreover, the absenteeism policy is to be applied across-the-board to both injured and non-injured workers alike who accumulate too many absences within a particular time frame. Section 111 does not require special or preferential treatment for workers injured on the job, but only that they not be treated differently from non-injured workers. The “no fault” policy in effect at Great Northern yields the latter result. To require otherwise would produce an untenable consequence. Cf. Duncan, 481 N.Y.S.2d at 25 (“To forbid absolutely any detrimental treatment of an injured worker would transform section 120 into a job security clause.”)

So long as the petitioner’s suspension was not “rooted substantially or significantly in the employee's exercise of his rights under the Workers’ Compensation Act,” there is no violation of Section 111. Delano, 405 A.2d at 229 . The Commissioner here found that the petitioner’s suspension was rooted substantially and significantly in the exercise of his rights under the Act based on testimony that “but for” his absence following his work-related injury he would not have been suspended. Nonetheless, as we reasoned in Delano , although Lindsay’s suspension may have been the direct result of his absence for his work-related injuries, it does not automatically follow either that his employer had a retaliatory motive in suspending him for filing a workers’ compensation claim, or, even assuming the existence of a retaliatory motive, that the improper motive was a “substantial factor” in Lindsay’s suspension. Id. The Commissioner merely found a causal nexus between the petitioner’s suspension and his asserting a workers’ compensation claim. However, he failed to discern any evidence of discrimination. Indeed, there is no evidence in the record that the employer suspended Lindsay because of a retaliatory motive, i.e., because Lindsay exercised his right under the Act of refusing to return to work that was hazardous to his work-related injury while recovering from that injury. Great Northern merely applied its facially-neutral absenteeism policy to the petitioner.

The Appellate Division therefore appropriately concluded that the Commissioner erred as a matter of law in finding discrimination under Section 111. 1 I would affirm the decision of the Appellate Division.

. The Appellate Division utilized the framework for employment discrimination established in Maine Human Rights Commission v. City of Auburn, 408 A.2d 1253, 1262-63 (Me.1979), apparently in addition to the "substantial factor” test of Delano . I And it unnecessary for the Court to determine, however, whether the standard outlined in Maine Human Rights Commission is the appropriate standard in this case because the decision of the Appellate Division is correct under the Delano standard.