Ex Parte Anthony Rogers.(in Re Anthony Rogers v. Penske Truck Leasing Co.

• Citation: 68 So.3d 773
• Decision Date: 30 December 2010
• Docket Number: 1080880.
• Parties: Ex parte Anthony ROGERS.(In re Anthony Rogersv.Penske Truck Leasing Co., L.P.).
• Court: Supreme Court of Alabama

68 So.3d 773

Ex parte Anthony ROGERS.(In re Anthony Rogers

v.Penske Truck Leasing Co., L.P.).

1080880.

Supreme Court of Alabama.

Dec. 30, 2010.

George B. Azar and Elizabeth C. Wible of Azar & Azar, LLC, Montgomery, for petitioner.Patricia J. Ponder and Jennifer S. Morgan of Hand Arendall LLC, Mobile, for respondent.MURDOCK, Justice.

Anthony Rogers petitioned for certiorari review after the Court of Civil Appeals affirmed a judgment denying his claim for unemployment-compensation benefits. We granted certiorari review to reconsider prior Alabama decisions holding that the claimant has the burden of proving the absence of a disqualification for misconduct.

Facts and Procedural History

Rogers was employed by Penske Truck Leasing Co., L.P., for several years as a customer-service representative. His duties included pumping fuel into trucks leased to Penske's customers. Rogers was accused of helping Christopher Bibb (not an employee or a customer of Penske) steal fuel from Penske. Bibb drove a large truck that was not leased from Penske. With the assistance of one or more Penske employees, Bibb arranged to have his truck fueled at Penske's Montgomery facility using billing codes assigned to trucks leased to Penske customers.

In October 2005, the fuel-stealing scheme was discovered and the Montgomery police began investigating. On October 31, 2005, Rogers was arrested by the Montgomery police for theft of fuel based on receipts found in Bibb's truck that bore Rogers's initials and employee-authorization code. On the afternoon of Rogers's arrest, Penske fired him for his alleged participation in Bibb's scheme to steal fuel from Penske. Rogers denied that he had participated in stealing any fuel from Penske.

In January or February 2006, the charges against Rogers were nol-prossed. In January 2007, Rogers was indicted for theft of fuel in connection with the events of October 2005.¹ In June 2007, Rogers was tried on the theft charges and was acquitted.²

After Rogers was fired, he filed a claim for unemployment-compensation benefits with the Alabama Department of Industrial Relations (“DIR”). Penske challenged the claim on the basis that Rogers had been discharged for a dishonest and criminal act and was therefore disqualified from receiving unemployment-compensation benefits. The claims examiner awarded benefits to Rogers and stated that “[t]he employer has failed to provide sufficient evidence to substantiate actual misconduct.” Penske appealed and DIR's hearing officer affirmed the award of benefits.

Penske appealed to the Montgomery Circuit Court.³ Before the circuit court, the parties allowed the court to decide the case based on the evidence previously filed by the parties. The circuit court denied benefits, stating that

“[w]hen, as here, an employee is terminated for misconduct, he bears the burden of proving he is not subject to the disqualification for benefits. Wal–Mart Stores, Inc. v. Hepp, 882 So.2d 329, 333 (Ala.2003).

“The Court further finds that [Rogers] failed to meet his burden of proof.”

(Emphasis added.) Rogers appealed.

The Court of Civil Appeals affirmed the circuit court's judgment, without an opinion, apparently concluding that it was bound by decisions of this Court that place on the claimant the burden of proving the absence of a disqualification for unemployment-compensation benefits. Rogers v. Penske Truck Leasing Co. (No. 2070985, April 3, 2009), 51 So.3d 1128 (Ala.Civ.App.2009) (table). This Court granted Rogers's petition for the writ of certiorari.

Standard of Review

“An appellate court reviews the burden of proof applied at trial and other legal issues ... without a presumption of correctness.” Ex parte USX Corp., 881 So.2d 437, 441 (Ala.2003).

Legal Analysis

In affirming the decision of the circuit court, the Court of Civil Appeals apparently considered itself bound by prior Alabama decisions that appear to indicate that the burden is on the unemployment-compensation claimant to prove the absence of a disqualification. In this regard, the cases cited by the Court of Civil Appeals in its order affirming the circuit court's judgment include Wal–Mart Stores, Inc. v. Hepp, 882 So.2d 329, 333 (Ala.2003); Wal–Mart Stores, Inc. v. Smitherman, 743 So.2d 442, 445–47 (Ala.1999); and Department of Industrial Relations v. Jaco, 337 So.2d 374, 376–77 (Ala.Civ.App.1976).

As discussed in more detail below, the prior Alabama cases provide little support for a rule that is contrary to the rule in most or all the other states that have addressed the issue before us. The Alabama rule referenced in these cases would require the claimant to prove a negative, a requirement the law generally is reluctant to impose. It is a rule that is inconsistent with the treatment of affirmative defenses generally and ultimately with the beneficent purposes of the unemployment-compensation act.

I. The Relevant Provisions of the Unemployment–Compensation Act

Section 25–4–77, Ala.Code 1975, sets forth the eligibility requirements for receiving unemployment-compensation benefits and provides, in pertinent part:

“(a) An unemployed individual shall be eligible to receive benefits ... only if the director finds that:

“(1) He has made a claim for benefits with respect to such week in accordance with such regulations as the director may prescribe.

“(2) He has registered for work at, and thereafter continued to report at, a state employment office....

“(3) He is physically and mentally able to perform work of a character which he is qualified to perform by past experience or training, and he is available for such work....

“(4) He has been totally or partially unemployed in such week.

“(5) He has made a reasonable and active effort to secure work which he is qualified to perform by past experience and training....”

Section 25–4–78, Ala.Code 1975, sets forth various disqualifications and provides, in part, as follows:

“An individual shall be disqualified for total or partial unemployment:

“(1) Labor dispute in place of employment. For any week in which his total or partial unemployment is directly due to a labor dispute still in active progress in the establishment in which he is or was last employed....

“(2) Voluntarily quitting work. If he has left his most recent bona fide work voluntarily without good cause connected with such work.

“....

“(3) Discharge for misconduct.

“a. If he was discharged or removed from his work for a dishonest or criminal act committed in connection with his work or for sabotage or an act endangering the safety of others or [drug-related misconduct].

“....

“b. If he was discharged from his most recent bona fide work for actual or threatened misconduct committed in connection with his work (other than acts mentioned in paragraph a. of this subdivision (3)) repeated after previous warning to the individual....

“c. If he was discharged from his most recent bona fide work for misconduct connected with his work [other than acts mentioned in paragraphs a. and b. of this subdivision (3) ]....” ⁴

Sections 25–4–77 and –78 do not address the allocation of the burden of proof.⁵

II. Prior Alabama Cases Suggesting That the Claimant Bears the Burden of Proof as to the Absence of a Disqualification

At best, Smitherman and Hepp, cited by the Court of Civil Appeals, provide only weak support for a rule allocating to the claimant the burden of proof as to the absence of a disqualification. Neither Smitherman nor Hepp, nor the cases on which they rely, contain any substantial legal analysis or discussion of applicable principles, and most of the cases they cite fail to distinguish between eligibility, disqualifying circumstances, and justifications or excuses for a disqualifying circumstance.

Moreover, Smitherman and Hepp did not directly involve an unemployment-compensation appeal, and the comments in those cases as to the allocation of the burden of proof appear to be dicta. The issue in both Smitherman and Hepp was whether the doctrine of collateral estoppel barred a retaliatory-discharge action brought pursuant to a provision of the Workers' Compensation Act, Ala.Code 1975, § 25–5–11.1, when an unemployment-compensation claim had previously been adjudicated against the employee in an administrative proceeding. In Smitherman, this Court stated:

“Under Alabama's Unemployment Compensation Act, a claimant has the burden of proving that he or she is eligible to receive benefits under Ala.Code 1975, § 25–4–77, and that he or she is not disqualified from receiving benefits by § 25–4–78. See Davenport v. State Dep't of Indus. Relations, 692 So.2d 851, 852 (Ala.Civ.App.1997). ‘ “The claimant assumes the risk of nonpersuasion.” ’ State Dep't of Indus. Relations v. Downey, 380 So.2d 906, 908 (Ala.Civ.App.1980) (quoting Department of Indus. Relations v. Tomlinson, 251 Ala. 144, 145, 36 So.2d 496, 497 (1948)).”

743 So.2d at 445–46. The Smitherman Court noted that, in the related unemployment-compensation case, it had been determined that the claimant was partially disqualified from receiving unemployment-compensation benefits because of misconduct. It held that that determination barred the claimant from relitigating in the retaliatory-discharge action the reason for her termination. Thus, the decision in Smitherman did not turn on which party had the burden of proof in the unemployment-compensation case, but simply on the fact that the issue had been litigated to a conclusion.

Further, the cases cited by Smitherman with respect to the burden of proof address only the eligibility for unemployment-compensation benefits, and not disqualification. Consequently, Smitherman provides little, if any, guidance for an allocation of the burden of proof on issues other than eligibility.⁶

Smitherman indirectly quoted Department of Industrial Relations v. Tomlinson, 251 Ala. 144, 36 So.2d 496 (1948), for the proposition that a claimant “ ‘ “assumes the risk of nonpersuasion.” ’ ” 743 So.2d at 445. Tomlinson, however,...