Alexander v. Jitney Jungle Stores of America, Inc.

Citation673 So.2d 402
Parties132 Lab.Cas. P 58,156 Stephen O. ALEXANDER v. JITNEY JUNGLE STORES OF AMERICA, INC. 1931230.
Decision Date20 October 1995
CourtSupreme Court of Alabama

Richard A. Meelheim of Vowell, Meelheim & Alexander, P.C., Birmingham, for Appellant.

Anita T. Lechner, E. Fredrick Preis, Jr. of McGlinchey Stafford Lang, New Orleans, Louisiana, Charles W. Cochran III, Florence, for Appellee.

RICHARD L. JONES, Retired Justice.

Stephen O. Alexander appeals from a summary judgment in favor of his former employer, Jitney Jungle Stores of America, in Alexander's action claiming retaliatory termination in violation of Ala.Code 1975, § 25-5-11.1. We reverse and remand.

The chronology of significant events preceding the filing of Alexander's claim alleging retaliatory termination follows:

1. July 1987 Alexander is employed by Jitney Jungle.

2. October 4, 1989 Alexander is injured on the job.

3. October 4, 1989 Alexander receives workers' compensation benefits and

through March remains off work on doctor's orders.

30, 1991

4. August 2, 1990 Alexander is informed by Jitney Jungle that he was

terminated on July 13, 1990.

5. October 9, 1990 Alexander is informed by Jitney Jungle that he was not

terminated but was removed from the payroll on July

13, 1990, and that his job is available on his return.

6. November 30, 1990 Alexander informs Jitney Jungle that his doctor has

and December 4, released him because he has reached maximum medical

1990 improvement, and that he will return to work on

December 5, 1990.

7. December 5, 1990 Alexander is told that he has been terminated pursuant

and December 6, to Jitney Jungle's leave-of-absence policy.


Section 25-5-11.1 provides:

"No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of Section 25-5-11."

Jitney Jungle contends that the issue here presented is controlled by Hayden v. Bruno's, Inc., 588 So.2d 874 (Ala.1991), and thus that the judgment is due to be affirmed. We disagree.

The proof required to sustain or defend against an action brought pursuant to § 25-5-11.1 was set out in Twilley v. Daubert Coated Products, Inc., 536 So.2d 1364 (Ala.1988):

"We hold that an employee may establish a prima facie case of retaliatory discharge by proving that he was 'terminated' because he sought to recover worker's compensation benefits, which would be an impermissible reason. The burden would then shift to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the plaintiff must prove that the reason was not true but a pretext for an otherwise impermissible termination."

536 So.2d at 1369.

In Hayden, the injured employee filed a workers' compensation claim and was later terminated. The employee sued, alleging retaliatory discharge. The employer introduced evidence that the employee had been terminated pursuant to an employment contract that required automatic termination of any employee whose leave of absence exceeded one year. The employer also introduced documents indicating that the employee had received poor performance evaluations. The trial court held, and this Court agreed, that the employee had produced no rebuttal evidence to "prove that the reason [given by the employer] was not true but a pretext." The judgment for the employer was affirmed.

The common thread running through both Hayden and this case is the application of an employer's absentee policy as the basis for the employee's termination. Notwithstanding this common element, however, the two cases are materially dissimilar in one important aspect: In Hayden, the employer offered evidence of legitimate reasons for terminating the employee, and the employee offered no rebuttal evidence. Jitney Jungle acknowledges that its sole reason for terminating Alexander was the application of Jitney Jungle's employee-absentee policy applicable to voluntary leaves of absence. Further, Alexander offered evidence that Jitney Jungle discontinued Alexander's temporary total workers' compensation benefits (which had amounted to $16,101.15) and made "on again off again" decisions to terminate Alexander (see items 4, 5, and 7 in the chronology set out above), in the context of Alexander's pursuit of permanent partial workers' compensation benefits. This rebuttal evidence furnishes a reasonable inference from which the jury, as factfinder, could conclude that Alexander's termination was the direct consequence of his pending workers' compensation claim (which was ultimately settled for a total of $27,451.99).

Jitney Jungle proffered evidence to the effect that it did not discriminate against Alexander in the application of the company's absentee policy. That evidence is admissible at trial on the "legitimate reason" issue, but it is not sufficient to entitle Jitney Jungle to a judgment as a matter of law.

This case is distinguishable from Graham v. Shoals Distributing, Inc., 630 So.2d 417 (Ala.1993), where the terminated employees "offered no evidence to refute [the employer's] evidence and [did not point] to substantial refuting evidence in [the employer's] submissions." 630 So.2d at 420.

This Court stated in Culbreth v. Woodham Plumbing Co., 599 So.2d 1120 (Ala.1992):

"We note that it would be more appropriate to say that, after the [employer] has met his burden of coming forward with evidence of a legitimate reason, ' "[t]he [employee] then has the burden of going forward with rebuttal evidence showing that the [employer's stated] reasons' " for terminating the [employee] are not true. Twilley [v. Daubert Coated Products, Inc., 536 So.2d 1364, 1369 (Ala.1988) ], quoting Pushkin v. Regents of the University of Colorado, 658 F.2d 1372, 1387 (10th Cir.1981). The [employee] does not have to 'prove' that the employer's stated reason is not true unless the [employer's] evidence is sufficiently certain, without more evidence from the [employee], to support a directed verdict. If the [employee's] prima facie case is strong, and the [employer's] evidence of an asserted reason is weak or equivocal, the jury might simply disbelieve the [employer].

"Similarly, in the context of summary judgment, if the [employer] has supported a summary judgment motion with evidence of a legitimate reason for terminating the [employee], the [employee] must then refute that showing with his own prima facie case; of course, the [employee] has no burden to produce evidence before trial until the [employer] has made and properly supported a motion for summary judgment. If the [employer's] showing of a legitimate reason is conclusive enough to establish that 'there is no genuine question as to [that] material fact and that the moving party is entitled to a judgment as a matter of law,' Rule 56(c), Ala.R.Civ.P., the [employee] would also have to produce evidence to refute that showing.


"Alabama's worker's compensation laws should be liberally construed in favor of the employee in order to advance and effectuate their beneficent purposes. Hilyard Drilling Co. v. Janes, 462 So.2d 942 (Ala.Civ.App.1985). If we were to say that, as a matter of law, the reason given by [the employer] is a conclusively legitimate reason, the beneficent purposes of § 25-5-11.1 would be significantly undermined."

599 So.2d at 1122-23.

The holding in this case is totally consistent with the holding in the recent case of Overton v. Amerex Corp., 642 So.2d 450 (Ala.1994), in which this Court reversed a summary judgment in favor of the employer because the employee "offered substantial evidence creating a genuine issue of material fact as to whether the reasons offered by [the employer] for her termination were a pretext for an impermissible termination." 642 So.2d at 453. See, also, Gresham v. Schlumberger Industries, Inc., 656 So.2d 347 (Ala.1995).

Because we conclude that Alexander offered substantial evidence creating a genuine issue of material fact as to whether the reason offered by Jitney Jungle for his termination was a pretext for an otherwise impermissible termination, the judgment is reversed and the cause is remanded.

This opinion was prepared by retired Justice RICHARD L. JONES, sitting as a Justice of this Court pursuant to § 12-18-10(e), Ala.Code 1975, and it is hereby adopted as that of the Court.



MADDOX, J., dissents.

MADDOX, Justice (dissenting).

I must respectfully dissent, because I believe that this case is factually similar to Smith v. Dunlop Tire Corp., 663 So.2d 914 (Ala.1995), in which the trial court granted the employer's motion for a summary judgment against the employee's claim that he had been terminated because he had filed a workers' compensation claim. In that case, the employee, Smith, was injured in an on-the-job accident while employed as a mold servicer at a tire manufacturing plant operated by Dunlop in Huntsville, Alabama. After the company nurse advised Smith to see a doctor concerning the injury to his arm, Smith's supervisor drove him to a doctor who examines Dunlop's employees who have been injured on the job. The doctor diagnosed Smith's injury as a sprained left wrist and instructed him not to return to work for two days. Smith reported the doctor's diagnosis and order to the company nurse, who in turn told him to report back to work according to the doctor's instructions. When Smith returned to work three days later, he was informed by David Gooch, personnel manager for Dunlop, that he had violated the attendance policy set out in Dunlop's collective bargaining agreement with his union and that his employment was, therefore, terminated.

In Smith, this Court opined:

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