Consolidated Stores Inc. v. Gargis

• Decision Date: 31 May 1996
• Citation: 686 So.2d 268
• Parties: CONSOLIDATED STORES, INC. v. Shelby GARGIS. 2940797.
• Court: Alabama Court of Civil Appeals

Page 268

686 So.2d 268

CONSOLIDATED STORES, INC. v. Shelby GARGIS.

2940797.

Court of Civil Appeals of Alabama.

May 31, 1996.

Rehearing Denied July 19, 1996.

Clarence M. Small, Jr., Deborah Alley Smith and Jane G. Ragland of Rives & Peterson, Birmingham, for appellant.

Rodney B. Slusher, Florence, for appellee.

CRAWLEY, Judge.

Shelby Gargis sued Consolidated Stores, Inc., d/b/a Big Lots ("Big Lots"), alleging a retaliatory discharge under Ala.Code 1975, § 25-5-11.1. Big Lots filed, in open court, a motion for issue preclusion, requesting that Gargis be precluded by reason of his Social Big Lots filed a motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. That motion was denied. Big Lots appealed. The supreme court transferred this case to this court pursuant to § 12-2-7(6), Ala.Code 1975.

Security disability claim and award from claiming that he was willing and able to work. That motion was not formally ruled upon by the trial court. During the trial proceedings, Gargis and his economic expert testified regarding Gargis' receipt of Social Security disability benefits. Big Lots moved for a directed verdict, both at the close of Gargis' case and at the conclusion of the evidence. The trial court denied both motions. The jury returned a verdict for Gargis, awarding $150,000 in compensatory damages and $50,000 in punitive damages. The trial court entered a judgment on that verdict.

FACTS

Gargis was employed by Big Lots from November 7, 1988, until April 19, 1993, when he submitted his resignation. At the time of his resignation, Gargis was on a leave of absence due to a back injury. In his letter of resignation, Gargis stated that the company had pursued a campaign of harassment and discrimination against him. He stated that the company had refused to allow him to work within his restrictions and had not paid him the bonuses he was due; that he had been subjected to accusations of malingering and dishonesty; and that one of the managers had on numerous occasions threatened to fire him.

Gargis' first job with Big Lots was as the manager of its Decatur store. He was later promoted to manager of Big Lots' Florence store in April 1989. On July 17, 1989, Gargis injured his back while lifting a display case. On August 17, 1989, Gargis' treating physician, Dr. Earl Jeffres, released Gargis to return to work, with certain restrictions on his physical activities. Gargis returned to work as manager of the Florence store.

On December 8, 1989, Gargis reinjured his back when he slipped and fell on some ice at the loading dock. Gargis took a leave of absence from December 12, 1989, until October 1, 1990. During this time, Gargis received workmen's compensation benefits. Dr. Jeffres restricted Gargis to lifting 15 pounds, to sitting and standing intermittently, and to working no more than 8 hours a day. Gargis returned to work as an assistant manager of the Florence store because there was no manager's position available; however, Gargis received the same rate of pay he had received while working as manager.

A manager's position became available at the Scottsboro Big Lots store in 1991, and the position was offered to Gargis. He accepted the offer and was promoted to this position on August 18, 1991. On October 21, 1991, Gargis took another leave of absence, claiming that the pain in his back had become worse because the company had forced him to ride a bus to attend a managers' meeting in August 1991. Gargis testified that his doctor recommended that he not ride the bus but that Penny Davis, Big Lots' human resources manager, and David Taylor, Big Lots' district manager, refused to permit him to take an alternative form of transportation. Gargis stated that he agreed to pay for the alternative form of transportation. On the contrary, Penny Davis testified that she told Gargis he could take an alternative form of transportation to the meeting.

Gargis returned to work at the Scottsboro store on May 6, 1992, as an assistant manager because there was no manager's position available. Gargis received workers' compensation benefits during his leave of absence, and when he returned to work he received the same pay he had previously received. In January 1993, Gargis took another leave of absence due to back problems. While still on leave, Gargis resigned from his employment at the Scottsboro store.

Gargis supports his constructive discharge claim with the following facts. During Gargis' tenure at the Florence Big Lots store, Donnie Horton, the store manager, increased Gargis' work hours and workload beyond the limitations placed by his treating physician. Gargis states he complained to the district manager and the human resources manager but that neither of them ever corrected the Gargis contends that after February 1991 his workload was increased; that he was given duties of hourly employees instead of management functions; and that he was ordered to ride a bus to attend a managers' meeting in spite of his doctor's recommendation that he not do so. Gargis claims that the bus ride made his back injury worse and that, as a result, he had to take another leave of absence.

                problem. 1  Gargis also claims that on numerous occasions, Mr. Horton and other management subjected him to insulting and humiliating remarks;  e.g., remarks suggesting that Gargis was malingering and faking the injury.  Gargis additionally claims that he was not included in the store managerial meetings
                

Gargis contends that when he moved to the Scottsboro store, the criticisms, insults, and harassments continued. One of Gargis' co-employees, Annie Fowler, testified that Ed Bolton, the store manager, would criticize and embarrass Gargis in the presence of other store employees and customers by accusing Gargis of malingering, being a deadbeat, faking his injuries, being lazy, and not performing his duties at the store. Ms. Fowler also testified that she heard Mr. Bolton make statements about firing Gargis and getting rid of him. Another co-employee testified and confirmed the testimony of Ms. Fowler.

Between October 1992 and January 1993, Gargis received two reprimands. One dealt with the unauthorized use of the company telephone for a long-distance call. The other reprimand was for tardiness and absenteeism. Gargis defended against the reprimand for absenteeism by stating that he was scheduled to be off work for a doctor's appointment. Gargis obtained a doctor's excuse, but it was dated January 19, 1993, after he had received the reprimand. These were the only two reprimands Gargis had ever received in his 29-year employment history.

During the time Gargis was off work in 1993, he learned that the company was not going to pay his bonuses that were due in March 1993. Gargis claims that this was the "final straw" that caused him to decide to resign from his employment with Big Lots. Following his resignation, however, Gargis received one of his bonus checks.

Gargis and Big Lots settled Gargis' workers' compensation claim. Big Lots paid his medical expenses and temporary total disability benefits in the amount of $25,466.75. Also, Big Lots paid Gargis a lump sum settlement of $50,000 and agreed to pay for all of Gargis' future medical treatment relating to his back injury.

ISSUES

1. Whether the trial court erred in denying Big Lots' motions for directed verdict and for judgment notwithstanding the verdict.

2. Whether the trial court erred in denying Big Lots' motions for directed verdict and judgment notwithstanding the verdict on Gargis' punitive damages claim.

3. Whether the trial court erred in refusing Big Lots' requested jury charge number 16 on mitigation of damages.

DISCUSSION

1. Big Lots' motions for directed verdict and JNOV.

Big Lots contends that the trial court erred in denying its motions for directed verdict and JNOV because, it argues, Gargis had failed to present substantial evidence to support his retaliatory discharge claim. "In reviewing the denial of motions for directed verdict and J.N.O.V., this Court must apply the same standard the trial court applies to its rulings on the motions." Motion Industries, Inc. v. Pate, 678 So.2d 724, 726 (Ala.1996). We must determine whether the party with the burden of proof presented sufficient evidence to require a jury determination of the issue. Id. at 726. We are governed by the "substantial evidence" rule set forth in Ala.Code 1975, § 12-21-12(d). "[S]ubstantial evidence is 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., 547 So.2d 870, 871 (Ala.1989). "This Court must view all the evidence in a light most favorable to the nonmovant and must entertain such reasonable inferences as the jury would be free to draw from the evidence." St. Clair Federal Sav. Bank. v. Rozelle, 653 So.2d 986, 987 (Ala.1995).

The retaliatory discharge statute is a legislatively created exception to the employment-at-will doctrine. It provides in pertinent part:

"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...."

Ala.Code 1975, § 25-5-11.1.

As remedial legislation, this section was enacted to offset the harsh effects of the employment-at-will doctrine. It should be construed liberally to effect its purpose. Motion Industries, Inc., supra.

Our supreme court has interpreted this section to also include claims based on constructive discharge. See Twilley v. Daubert Coated Products, Inc., 536 So.2d 1364, 1368 (Ala.1988). In Irons v. Service Merchandise Co., 611 So.2d 294 (Ala.1992), our supreme court defined "constructive discharge" as follows:

" '[I]f the employer deliberately makes an employee's working conditions so intolerable that the employee is forced into an...