M & J Materials, Inc. v. Isbell (Ex parte Isbell)

• Decision Date: 28 June 2013
• Docket Number: 1091163.
• Citation: 153 So.3d 8
• Parties: Ex parte Stanford D. ISBELL. (In re M & J Materials, Inc. v. Stanford D. Isbell).
• Court: Alabama Supreme Court

153 So.3d 8

Ex parte Stanford D. ISBELL.(In re M & J Materials, Inc.

v.Stanford D. Isbell).

1091163.

Supreme Court of Alabama.

June 28, 2013.

David Madison Tidmore of Weaver Tidmore, LLC, Birmingham, for petitioner.

Erskine R. Funderburg, Jr., of Trussell & Funderburg, P.C., Pell City, for respondent.

Opinion

MURDOCK, Justice.

We granted a petition for a writ of certiorari filed by Stanford D. Isbell challenging the reversal by the Court of Civil Appeals of a judgment entered on a jury verdict in Isbell's favor against Isbell's former employer, M & J Materials, Inc. (“M & J”), on a claim alleging retaliatory discharge. We reverse the judgment of the Court of Civil Appeals and remand the case.

I. Facts and Procedural History

In February 2007, Isbell sued M & J and fictitiously named defendants in the Jefferson Circuit Court seeking an award of benefits under the Alabama Workers' Compensation Act, Ala.Code 1975, § 25–5–1 et seq. (“the Act”), based upon a workplace injury to his wrist that occurred on June 15, 2006. Isbell further sought compensatory damages and punitive damages based on a claim of retaliatory discharge. In its answer to the complaint, M & J denied liability and, as to the retaliatory-discharge claim, specifically averred that Isbell's employment had been terminated “for possession of and wielding a firearm within the workplace and property of” M & J. The parties thereafter settled their differences as to the claim for disability benefits under the Act, leaving pending only the retaliatory-discharge claim. M & J filed a motion for a summary judgment as to the retaliatory-discharge claim, which Isbell opposed; that motion was denied.

A trial was held on the retaliatory-discharge claim beginning on November 17, 2008. The Court of Civil Appeals' opinion provided a rendition of most of the facts adduced at trial, which we quote below. We have interspersed footnotes where appropriate to detail certain facts contained in the record but not mentioned by the Court of Civil Appeals.

“The record reveals that [Isbell] suffered an employment-related injury to his right wrist on June 15, 2006, and that an employer's first-report-of-injury form was completed by Larry Cox, [M & J's] vice president of manufacturing at the time, and transmitted to the Alabama Department of Industrial Relations. Although [Isbell] returned to work in sheltered employment for several weeks, [Isbell] was subsequently diagnosed with carpal tunnel syndrome and underwent carpal tunnel release surgery on July 25, 2006; he was determined to be at maximum medical improvement on November 9, 2006.

“The record also reveals that at some time during 2006 while [Isbell] was working for [M & J], either before or after [his] injury, [Isbell] brought a firearm onto [M & J's] premises. The circumstances of [Isbell's] having done so are largely in dispute. [Isbell] testified that on the day in question, which he identified as April 10, 2006 (but that [M & J's] evidence identified as having been in late June), he had taken his .22 caliber target pistol inside [M & J's] physical plant and had placed it inside a padlocked tool box because, he said, his automobile locks were not properly functioning and he ‘was afraid somebody would steal it’ from that vehicle. [Isbell] also testified that, when he had informed his supervisor, Steven Collins, that he had brought the gun into the plant, Collins had stated that [Isbell] ‘didn't need that in here’ and had directed him to return the weapon to [Isbell's] vehicle.^{[ 1 ]} [Isbell] denied having engaged in horseplay with the firearm or having threatened anyone with it, contradicting other witnesses' testimony that he had aimed the weapon at Collins several times; ^{[ 2 ]} further, he denied having received a printed employee handbook or having seen a posted work rule barring firearms, and he added that [he] knew of two or three other employees who had brought firearms into [M & J's] plant and that one such firearm had been discharged, but that no one's employment had been terminated as a result of that conduct.

“Other evidence adduced by [Isbell] tended to corroborate [his] testimony that other employees had brought firearms into the plant on various occasions. John Dooley, a former coworker of [Isbell's], testified that he had seen four employees of [M & J] bring firearms into the plant.^{[ 3 ]} Shane Bowen, another former coworker of [Isbell's], testified that he had observed that a number of employees had brought firearms with them to [M & J's] premises for selling or trading purposes, stating that it had been ‘common practice to buy and trade and sell guns' because he had worked ‘with a bunch of hunters,’ but he added that that activity had occurred ‘in the parking lot 90 percent of the time.’ Nonetheless, Bowen also testified that on one occasion he had shown some of his coworkers, including Collins, a firearm in its original display case ‘inside the plant’ and had not been disciplined. Although Bowen testified at his deposition that [M & J] had indeed had a firearms policy and that it was to the effect that ‘[y]ou don't bring one in the plant,’ on direct examination at trial Bowen testified that he had not seen or heard of a policy to the effect that ‘if you bring a pistol inside the plant you're going to get fired’; on cross-examination, when confronted with the inconsistency, Bowen admitted that he ‘thought we got a handbook when we first came to work there.’ Importantly, Bowen also testified that Cox, [M & J's] vice president, had known nothing about the presence of any firearms at the plant.^{[ 4 ]}

“[Isbell] also called Greg Burns, another former coworker, as a witness. Burns testified that on one occasion he had observed [Isbell] take a black pistol from a holster and aim it at Collins two or three times while Collins had his back turned to [Isbell]. At that time, Burns, fearing the consequences of a heated confrontation between [Isbell] and Collins that might result from a report that [Isbell] had waved a gun at his supervisor, orally reported to Collins simply that [Isbell] had brought a firearm to the plant and that that made him uncomfortable, after which Collins talked to [Isbell]. Several weeks after having made that oral report, Burns, during a [July 27, 2006,] meeting with Cox, raised the firearm-possession issue again because, he erroneously believed, Cox had known about it, and he disclosed the alleged aiming incident in further detail at that time; ^{[ 5 ]} Burns, Cox, and Collins then attempted to deduce the date of the occurrence from the length of the work day and the presence and absence of other workers, reaching the conclusion that [Isbell] must have brought the firearm to work in late June 2006.^{[ 6 ]}

“Another of [Isbell's] former coworkers, Randy Cohron, testified that he had observed [Isbell] on the day when he brought the firearm into [M & J's] plant, although he was unsure of the specific day on which that had occurred; he also did not observe [Isbell] aim the weapon at anyone. Cohron testified that when he observed [Isbell] with the weapon, he told [Isbell] that he could ‘get in trouble for bringing it in,’ i.e., that [Isbell] could ‘[g]et wrote up or fired.’ Cohron also testified to knowing of one incident in which a former employee, identified only by the nickname ‘Convict,’ had been fired after bringing a knife into [M & J's] breakroom during a disagreement with a coworker.^{[ 7 ]} Cohron testified on direct examination that on one occasion he had himself purchased a weapon on [M & J's] property, but he added during cross-examination that that transaction had occurred in the parking lot of the plant.

“Collins testified at trial that Burns had approached him on a Saturday, close to the end of the working day, and had informed him that [Isbell] ‘had a gun in the shop,’ but had not reported that [Isbell] had pointed the firearm at him. At that time, Collins simply instructed [Isbell] to take the firearm out of the plant, but he added that ‘that was before I found out he was pointing it at people.’ Collins also testified that he had not made the decision to terminate the employment of [Isbell]; he assumed that that decision was made by Cox.^{[ 8 ]}

“Dooley testified that after it had been determined that [Isbell] would be undergoing carpal tunnel release surgery, he had had a conversation with Collins about [Isbell's] situation and, according to Dooley, ‘he wasn't liking it.’ According to Dooley, Collins made the statement ‘I'm going to find some way to get this out of here’ two or three weeks before [Isbell's] employment was terminated. Dooley also testified that Collins had subsequently informed him that [Isbell] had been fired and that ‘[t]he lawyer said we could’ terminate [Isbell's] employment for ‘[b]ringing a gun in here.’ Dooley admitted, however, that he had been hired by Cox (not Collins) and that he had notified Cox (not Collins) when he decided to cease working for [M & J].

“Cox testified at trial that on July 27, 2006, Burns had first reported that he did not feel safe working in an environment with [Isbell] present because, Burns had said, he had seen [Isbell] take a pistol, point it at Collins, and pretend to shoot him. Cox also testified that he had prior knowledge that [Isbell] did not like Collins. In response to Burns's report, Cox summoned Collins, who reported that he had been unaware of [Isbell's] actions because they had occurred while Collins's back had been turned to [Isbell]. Cox immediately notified his own supervisor, Lavon Drake ( [M & J's] president in charge of operations), regarding the incident.

“During [M & J's] case, Frank Hopson, [M & J's] chief executive officer and part owner, testified that he had been contacted by Drake, who mentioned having a problem that normally would not be referred to Hopson but for ‘extenuating circumstances.’ Hopson testified that after being informed that several coworkers of [Isbell's] had made statements to the effect that [Isbell] had had a

...