Ex Parte Ray Keith Wood.(in Re Black Creek Inc. v. Wood)

• Decision Date: 14 January 2011
• Docket Number: 1090877.
• Citation: 69 So.3d 166
• Parties: Ex parte Ray Keith WOOD.(In re Black Creek, Inc.v.Ray Keith Wood).
• Court: Alabama Supreme Court

69 So.3d 166

Ex parte Ray Keith WOOD.(In re Black Creek, Inc.

v.Ray Keith Wood).

1090877.

Supreme Court of Alabama.

Oct. 29, 2010.Rehearing Denied Jan. 14, 2011.

William S. Halsey III, Birmingham; and Timothy A. Hughes, Birmingham, for petitioner.Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for respondent.WOODALL, Justice.

As he describes it, Ray Keith Wood pulled a muscle loose in his left forearm while working as a machinist for Black Creek, Inc., in February 2000. Black Creek's workers' compensation insurance carrier authorized surgery on Wood's forearm. The surgery was performed on May 5, 2000. Wood returned to work on June 12, 2000, having been released by his surgeon to do only right-handed work; his left arm was in a brace.

During his first week back at work, Wood had three physical-therapy appointments. His time card indicated that he worked his full shift on June 12 before leaving for his appointment but that he left work an hour and a half early on June 15 and June 16 to go to physical therapy. Melanie Tullis, Black Creek's human-resources manager, wrote up a disciplinary warning, citing Wood's alleged failure to follow Black Creek's policy that required employees to attempt to schedule their medical appointments at the beginning of, near the end of, or after their shifts. The disciplinary warning also warned that Wood was required to notify Tullis or his supervisor if he had to leave early to attend a medical appointment. This disciplinary warning was never given to Wood.

On June 19, 2000, Wood complained to his doctor that his light-duty job was causing pain in his right arm. The doctor gave Wood a written excuse for missing work on June 19, requesting in it that Black Creek “ease up” on the work being assigned to Wood. Tullis testified that Wood had told his supervisor that he would telephone her after his appointment on June 19 if he would not be returning to work that day. When Wood did not return to work or telephone his supervisor, Tullis wrote up a second disciplinary warning. This second warning, like the first, was never given to Wood.

On June 20, 2000, Wood arrived at work shortly before 7:00 a.m. for his scheduled shift. He testified that he was in a lot of pain and that the pain limited his use of both arms. Wood testified that he went to the front office and spoke to Daryl Weaver, Black Creek's president. Wood said that he told Weaver that both his arms hurt and that he needed to see the doctor again. According to Wood, Weaver told him to “do what you gotta do” and to tell Tullis.

Wood testified that, after speaking with Weaver, he approached Tullis, who told him that she did not have time to talk to him. Wood said that he told Tullis that he needed to go back to the doctor but that she told him that she did not have time to “fool with [him] right now.” Tullis testified that she had been conducting an orientation that morning for two new employees and had not had time to talk to Wood.

Both Wood and Tullis testified that Wood was agitated by Tullis's response. Tullis testified that, as she walked away, she heard Wood say something. Two other Black Creek employees, DeLynn Minshew and Byron Pledger, testified that they overheard Wood say: “She can just kiss my ass.” Wood admitted making the comment, but he testified that he “muttered [it] under his breath” after Tullis had walked away and that the remark was not directed at anyone. Minshew testified that Wood made the comment as he was “going out [of the office] into the shop” and as Tullis was walking down the hallway.

Wood testified that, after leaving the front office, he clocked out at 8:00 a.m. to go to the doctor.¹ George Robertson, a supervisor at the plant, testified that he heard Wood say: “I'm leaving, I am going home before I slap that bitch, if that workmen's comp lady don't have time to talk to me, I'm going to the house.” Wood denied saying that he would slap Tullis.

Tullis testified that, sometime during the morning of June 20, she learned of the statements Wood had allegedly made and she learned that Wood had left work early. She notified Tommy Marshall, the plant manager, that Wood had left early. Marshall testified that he asked Tullis and Wood's supervisor whether Wood had received permission to leave work. Tullis testified that Wood had not asked her for permission to leave nor informed her that he needed to return to the doctor. Dorothy Willingham, Wood's supervisor, also testified that Wood had not asked her for permission to leave work.

Marshall testified that he did not hear Wood make the allegedly inappropriate comments regarding Tullis but that he had received and reviewed written statements from Tullis, Minshew, Pledger, and Robertson. Marshall testified that Wood's decision to leave work early on June 20 without permission and his comments regarding Tullis, considered together, formed the basis of Marshall's decision to terminate Wood's employment. On June 20, Marshall spoke to Wood by telephone and informed him that his employment with Black Creek had been terminated because he had left work early that day without permission.²

In August 2000, Wood sued Black Creek, seeking worker's compensation benefits and alleging that Black Creek had discharged him in retaliation for his filing a worker's compensation claim. See § 25–5–11.1, Ala.Code 1975 (“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover worker's compensation benefits....”). In February 2001, Wood's worker's compensation claim and retaliatory-discharge claim were severed, and the worker's compensation claim was eventually settled. In December 2007 and January 2008, the trial court, sitting without a jury, heard testimony regarding Wood's retaliatory-discharge claim.

At the close of Wood's evidence, and again at the close of all the evidence, Black Creek filed what it styled as a motion to dismiss or, in the alternative, a motion for a judgment as a matter of law (“JML”).³ The trial court denied the motions, and, on May 25, 2008, it entered a judgment in Wood's favor, awarding him $50,000 in damages. The trial court later amended its judgment to specify that “Wood had proven a prima facie case of retaliatory discharge and that the stated reason for his discharge was pretextual and stating that Wood was awarded $20,000 in back wages and $30,000 for mental anguish.” Black Creek, Inc. v. Wood, 69 So.3d 156, 163 (Ala.Civ.App.2010). Black Creek appealed to the Court of Civil Appeals.

On July 31, 2009, the Court of Civil Appeals issued a plurality opinion, in which the court reversed the trial court's judgment. Wood applied for a rehearing. On March 12, 2010, the Court of Civil Appeals overruled Wood's application for a rehearing but withdrew its original opinion and substituted a new one, also a plurality decision. In the new opinion, the Court of Civil Appeals reversed the decision of the trial court and remanded the case with instructions for the trial court to enter a judgment in Black Creek's favor. Wood, 69 So.3d at 165–66.

Wood petitioned this Court for certiorari review of the Court of Civil Appeals' judgment. He argued, pursuant to Rule 39(a)(1)(D), Ala. R.App. P., that the Court of Civil Appeals' decision conflicts with prior caselaw from this Court. This Court granted certiorari review to address the alleged conflicts. We reverse and remand.

Analysis

In Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala.2002), this Court stated:

“In order for an employee to establish a prima facie case of retaliatory discharge the employee must show: 1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the employee's on-the-job injury and the filing of a workers' compensation claim.”

Once a plaintiff establishes a prima facie case of retaliatory discharge, “ ‘[t]he burden ... then shift[s] to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the employee must prove that the reason given by the employer was not true but a pretext for an otherwise impermissible termination.’ ” Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1122 (Ala.1992) (quoting Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364, 1369 (Ala.1988)).

“An employer's stated basis for a discharge is sufficient as a matter of law when the underlying facts surrounding the stated basis for the discharge are undisputed and there is no substantial evidence indicating (a) that the stated basis has been applied in a discriminatory manner to employees who have filed workers' compensation claims, (b) that the stated basis conflicts with express company policy on grounds for discharge, or (c) that the employer has disavowed the stated reason or has otherwise acknowledged its pretextual status.”

Aldridge, 854 So.2d at 568.

Black Creek has argued that Wood's employment was terminated because (1) he voluntarily quit on June 20 by leaving work early without permission, and (2) his statements regarding Tullis—that he would “slap that bitch” and that “[s]he can kiss my ass”—violated company policies against the use of inappropriate language and threatening or insubordinate behavior.⁴ In the opinion below, a plurality of the Court of Civil Appeals stated:

“Black Creek points out that, even though Wood's alleged statement regarding slapping Tullis and his allegedly leaving work without permission were sharply disputed below, one other part of Wood's behavior on June 20, 2000, which also formed part of the basis for Wood's discharge, was undisputed. Specifically, Black Creek relies on Wood's admission that he made the statement ‘she can just kiss my ass' in reference to Tullis after she was unable to speak with him on June 20, 2000. Although Wood argued that the fact...