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Jandreau v. Shaw's Supermarkets11/25/2003
Reporter of Decisions
Argued: October 15, 2003
Both Diane Jandreau and Shaw's Supermarkets, Inc., appeal from a decision of a hearing officer of the Workers' Compensation Board (McCurry, HO), granting Jandreau's petition to remedy discrimination. Shaw's contends that it was error to conclude that its termination of Jandreau's employment pursuant to a facially neutral six-month absenteeism policy constituted discrimination in violation of 39-A M.R.S.A. ยง 353 (2001). Jandreau contends that the hearing officer erred in permitting Shaw's to offset the backpay award by the amount of compensation already paid. Because we agree with Shaw's that the hearing officer erred in finding discrimination pursuant to section 353, we vacate the decision and do not reach Jandreau's contentions related to the nature of the remedy for that discrimination.
I. BACKGROUND
Jandreau began employment by Shaw's in 1994 and was working in its bakery in 1996 when she suffered a work-related injury to her lower back. She returned to work in the bakery after her injury with medically required work restrictions. She reinjured her back in January 2000 while lifting baking trays.
Jandreau left work following the 2000 injury and underwent physical therapy. She testified that she was approved to return to work by her doctor in July 2000, subject to work restrictions that precluded repetitive bending or twisting, prolonged sitting or standing, lifting greater than twenty pounds, or working longer than four hours a day. Shaw's informed Jandreau that it could not accommodate her work restrictions and terminated her from employment in July 2000, pursuant to a long-standing policy providing for the termination of part-time employees who have been absent from work for six months, regardless of the reason for the absence.
In November 2000, five months after the termination, Shaw's offered Jandreau reinstatement as a grocery bagger, which she declined. In a previous decree involving these parties, which is not the subject of this appeal, a hearing officer of the Board granted Jandreau's petition for review and awarded her continuing 100% partial incapacity benefits. The hearing officer found that Jandreau had not unreasonably refused a bona fide job offer of work without good and reasonable cause, because the work proffered in November 2000 was not within her work restrictions.
Jandreau filed a separate petition to remedy discrimination pursuant to section 353 in November 2001. In the decision and subsequent findings of fact and conclusions of law that are the subject of this appeal, the hearing officer found that Jandreau's absence from work for six months prior to her termination was due to her work-related injury. The hearing officer concluded that although Shaw's applied a facially neutral termination policy,
he effect of applying that policy here . . . was to penalize the injured employee because of her exercise of her right to be out of work where the employer could not accommodate her restrictions. Shaw's policy was facially neutral, but its actions in terminating Ms. Jandreau were not only "rooted substantially and significantly," in Ms. Jandreau's exercise of her rights under the Act, Shaw's actions were solely based upon her exercise of those rights.
(quoting Lindsay v. Great N. Paper Co., 532 A.2d 151, 153 (Me. 1987)). As a remedy for the discrimination, the hearing officer ordered "back pay from July 26, 2000, to the present and continuing until [Jandreau] is reinstated, less the workers' compensation paid to her, and she is entitled to a reasonable attorney's fee."
Both parties filed petitions for
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