Courts in the Community

No. SCWC-14-0001135, Wednesday, April 10, 2019, 10 a.m.

In the Matter of BCI COCA-COLA BOTTLING COMPANY OF LOS ANGELES, INC., Respondent/Respondent-Appellant-Appellee/Cross-Apppellee, vs. SCOTT T. MURAKAMI, in his official capacity as the Director, Department of Labor and Industrial Relations, State of Hawaiʻi; DEPARTMENT OF LABOR AND INDUSTRIAL RELATIONS, STATE OF HAWAIʻI, Respondents/Appellees-Appellees/Cross-Appellants, and TAMMY L. JOSUE, Petitioner/Complainant-Appellee-Appellant/Cross-Appellee.

The above-captioned case has been set for argument on the merits at:

Kauai Community College
Performing Arts Center
3-1901 Kaumualii Hwy
Līhuʻe, HI 96766

Attorney for Petitioner Josue:

Ronald T. Fujiwara

Attorneys for Respondents Murakami and DLIR:

Frances Lum, Li-Ann Yamashiro, and Adam S. Rosenberg, Deputy Attorneys General

Attorneys for Respondent BCI Coca-Cola:

Anna Elento-Sneed and Trisha Gibo of ES&A, Inc.

NOTE:  Order accepting Application for Writ of Certiorari, filed 01/31/19.

COURT:  Recktenwald, C.J., Nakayama, McKenna, Pollack, and Wilson, JJ.

[ Listen to the entire audio recording in mp3 format ]

Brief Description:

Tammy Josue was employed at Coca-Cola when, in May 2009, she suffered a stress injury that resulted from her employment. Josue was unable to work, and Coca-Cola placed her on a twelve-month leave of absence in accordance with its disability leave policy. On April 15, 2010, Coca-Cola hired an employee to permanently fill Josue’s position. Josue was authorized to return to work by her doctor on September 1, 2010, with no restrictions. Upon her return, Josue was informed that her position had been filled. Coca-Cola later offered Josue other positions that Josue declined, which she explained either offered lower pay or required minimum qualifications that she did not possess. Josue was told that if she did not find a new position with the company within twelve weeks, she would be terminated.

Two weeks later, Josue filed a complaint with the Department of Labor and Industrial Relations (the Department). In her complaint, Josue argued that Coca-Cola discriminated against her on September 1, 2010, when the company did not return her to her position after she was cleared to return to work. Josue alleged that Coca-Cola discriminated against her “solely because” she suffered a work injury, which violated Hawaii Revised Statutes (HRS) § 378-32(a)(2) (2015).

After a hearing, the hearing officer issued a recommended decision and concluded that Coca-Cola’s failure to return Josue to the former position constituted discrimination against her solely because of her work injury, which violated HRS § 378-32(a)(2). Upon review, the Director of the Department adopted the recommended decision.

Coca-Cola appealed the Director’s decision to the Circuit Court of the First Circuit (circuit court). The circuit court reversed the Director’s decision and held that the company’s actions did not violate HRS § 378-32(a)(2).

Josue appealed the decision to the Intermediate Court of Appeals (ICA). The ICA affirmed the circuit court’s decision and held that Coca-Cola did not discriminate against Josue “solely because” of her injury. The ICA found that the company filled the position because it determined that Josue’s absence was creating a business hardship and that it refused to reinstate her as the position had been filled. The ICA also stated that there was no finding by the hearing officer that indicated Coca-Cola’s business hardship was pretextual. Therefore, the ICA concluded that Coca-Cola did not violate HRS § 378-32(a)(2).

In her application for a writ of certiorari, Josue argues that Coca-Cola violated the statute because but for her injury, there would have been no need to fill the position. Josue also contends that Coca-Cola was required to either leave the position vacant or hire a temporary employee until she was able to return. The ICA therefore erred, Josue asserts, when it concluded that Coca-Cola did not discriminate against her “solely because” of her injury. Coca-Cola responds that the ICA’s opinion should be affirmed.