Bleier v. Wellington Sears Co.

• Decision Date: 21 January 2000
• Citation: 757 So.2d 1163
• Parties: William M. BLEIER v. WELLINGTON SEARS COMPANY.
• Court: Alabama Supreme Court

757 So.2d 1163

William M. BLEIER v. WELLINGTON SEARS COMPANY.

1971121.

Supreme Court of Alabama.

January 21, 2000.

Timothy L. Dillard, Stevan K. Goozée, and Lawrence T. King of Dillard, Goozée & King, Birmingham, for appellant.

Charles A. Powell III, David W. Proctor, and J. Trent Scofield of Johnston, Barton, Proctor & Powell, L.L.P., Birmingham; and Stephen E. Brown of Maynard, Cooper & Gale, P.C., Birmingham, for appellee.

LYONS, Justice.

William M. Bleier appeals from a summary judgment entered in favor of Wellington Sears Company, a corporation, on Bleier's claim alleging a retaliatory discharge. We reverse and remand.

Wellington Sears is a textile manufacturer. Bleier is a former employee of Wellington Sears. On December 4, 1995, while working at Wellington Sears's mill at Shawmut, Bleier injured his back when he slipped and fell on a wet floor. He sought treatment from the company nurse, Linda Yates, who gave him some medication and made an appointment for him on December 18, 1995, with the company doctor, Dr. B.F. Thomas. Bleier continued to perform his regular duties at the Shawmut mill after receiving the injury. In mid-January 1996, Bleier met to discuss his accident with Yates; his supervisor, Olin Anglin; and Wellington Sears's human-resources manager, David Wilkerson. At that meeting, Bleier requested a second medical opinion. Wellington Sears made an appointment for him with one of Dr. Thomas's partners, Dr. David Scott. Thereafter, Wellington Sears transferred Bleier to a light-duty position at its Langdale mill, where Bleier performed primarily clerical tasks.

Bleier says that on January 30, 1996, he left work early because of back pain. He then did not report to work for three consecutive days. On February 5, 1996, Wellington Sears terminated Bleier's employment. In a letter dated February 19, 1996, Wellington Sears advised Bleier that he had been discharged for failure to report to work or to give proper notice for three consecutive days—January 31, February 1, and February 2, 1996.

Bleier contends that on the afternoon of January 30, when he told Yates he was in pain and needed to go home, he also told her that if he continued to be in pain he would not come to work on January 31. On the morning of February 1, Bleier went to the Shawmut mill to pick up his paycheck. While he was there, he says, he spoke briefly with Anglin about his accident and told him he had an appointment that afternoon with Dr. Scott. Bleier reported to Dr. Scott's office on the afternoon of February 1, but did not see the doctor. Instead, he obtained copies of his medical records. Bleier testified that, because he was not satisfied with his medical progress, he made an appointment for February 2 with a doctor at the Hughston Clinic, a medical facility specializing in orthopedics, where he said he spent the entire day of February 2. Bleier stated that on February 5 he telephoned Wellington Sears to tell Yates and Wilkerson about his visit to the Hughston Clinic. At that time, he said, Wilkerson told him he was being discharged for failing to report his absences in accordance with company policy. Wellington Sears insists that even if Bleier made these contacts, he still failed to comply with the proper procedures for reporting absences from work.

On March 21, 1996, Bleier sued Wellington Sears, seeking workers' compensation benefits and alleging that Wellington Sears had fired him in retaliation for having filed a workers' compensation claim. The retaliatory-discharge claim was made pursuant to § 25-5-11.1, Ala.Code 1975.¹ The trial court severed Bleier's two claims; Bleier and Wellington Sears later settled the workers' compensation claim. Pursuant to their settlement agreement, Wellington Sears paid Bleier a lump-sum settlement of $35,000, the approximate equivalent of a 50% permanent vocational disability.

Upon completion of discovery, Wellington Sears moved, pursuant to Rule 56(c), Ala. R. Civ. P., for a summary judgment as to Bleier's retaliatory-discharge claim. In its motion, Wellington Sears asserted that Bleier was precluded from a recovery under § 25-5-11.1 because, it said, Bleier was not "willing and able" to return to work. The Court of Civil Appeals has stated that an employee's being willing and able to return to work is an essential element that must be proved in order to recover under the retaliatory-discharge statute. See Consolidated Stores, Inc. v. Gargis, 686 So.2d 268 (Ala.Civ.App.), cert. denied, 686 So.2d 278 (Ala.1996), and its progeny. Wellington Sears also argued in its motion that even if Bleier's retaliatory-discharge claim was not precluded by his failure to satisfy the "willing and able" requirement, it had produced substantial evidence indicating that it had discharged Bleier for a legitimate reason that was not merely pretextual.

The trial court entered a summary judgment in favor of Wellington Sears, based on a conclusion that Bleier could not satisfy the "willing and able" requirement of proof. In its order, the trial court set forth the following facts:

"The record evidence is undisputed that [Bleier] cannot satisfy the `willing and able' prong of a prima facie workers' compensation retaliatory discharge case. [Bleier] repeatedly testified in his deposition that, since January 30, 1996 (his last day of work), he has been and currently is physically unable to work.... Further, the [Judgment] and Order Approving Settlement of [Bleier's] workers' compensation benefits claim, entered June 17, 1997, states that [Bleier] is receiving a lump sum settlement of $35,000 (the equivalent of a 50% permanent vocational disability) and states that, `[a]ccording to [Bleier], he is unable to return to work with [Wellington Sears] or to similar, gainful employment. Likewise, a functional capacities evaluation of February 27-28, 1997, indicates that [Bleier] is severely limited with regard to both his upper extremities and lower extremities functions and in numerous other physical, functional aspects.' Finally, this Court notes that [Bleier] has twice been offered re-employment with [Wellington Sears], but has declined on both occasions."

As noted by the trial court, Bleier testified in his deposition that since January 30, 1996 (his last day of work), he has been—and he says he currently is—physically unable to work. In other words, Bleier has neither worked nor attempted to work since January 30, 1996, six days before Wellington Sears fired him. In his deposition, Bleier described his condition:

"Well, sir, I don't feel like doing nothing to tell you the truth. I don't feel that I'm able to do nothing. I don't feel like doing nothing. I don't have the desire to do nothing. And I don't foresee right now in the near future doing anything. I'm just [not] physically able—I don't have the state of mind, I don't believe I'm physically capable. It's hard for me sometimes even just to sit up sometimes."

Bleier, however, points to another part of his deposition testimony where he stated that between February 5, 1996, and September 4, 1996, he was physically able to do work "to a certain extent."

Bleier contends that the requirement that an employee show that he or she is "willing and able" to return to work as an element of a retaliatory-discharge claim is an unwarranted and unconstitutional extension of § 25-5-11.1. Bleier maintains that if the relevant moment of inquiry is limited to the point at which the employee was discharged, as he contends it should be, then any evidence of his condition after Wellington Sears discharged him should not be considered on the question whether he had presented sufficient evidence to create a prima facie case. Otherwise, he argues, the application of the "willing-and-able" doctrine creates a potential for great unfairness in the case of an injured employee who is discharged at a point when he or she is not yet "willing and able" to return to work but is, at that point, only temporarily disabled. Bleier also contends that Wellington Sears's stated reason for discharging him was not true, but was merely a pretext for otherwise impermissible action. Specifically, he maintains that a representative of Wellington Sears admitted to him that the company had violated § 25-5-11.1 when it discharged him.

When reviewing the disposition of a motion for a summary judgment, this Court applies the same standard of review as the trial court "in determining whether the evidence before the court made out a genuine issue of material fact." Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala. 1988). When a party moving for a summary judgment makes a prima facie showing that there is no genuine issue of material fact and that the movant is entitled to a judgment as a matter of law, the burden shifts to the nonmovant to present substantial evidence creating a genuine issue of material fact.² Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794 (Ala.1989). "Substantial evidence" is defined as "evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

Under Alabama law, an employment contract is terminable at will by either party—for a good reason, a wrong reason, or no reason at all. Culbreth v. Woodham Plumbing Co., 599 So.2d 1120 (Ala.1992). Because of this rule, which dates back to Howard v. East Tennessee V. & G. Ry., 91 Ala. 268, 8 So. 868 (1891), this Court refused to recognize a commonlaw remedy for a retaliatory discharge occurring as a result of an employee's filing a claim for workers' compensation benefits. Meeks v. Opp Cotton Mills, Inc., 459 So.2d 814 (Ala.1984). In order to ameliorate the effect of the employment-at-will doctrine in the context of an employee discharged for filing a claim for workers' compensation benefits, the Legislature in 1984 enacted § 25-5-11.1, ...