Gilbert v. Tyson Foods, Inc.

• Court: Alabama Court of Civil Appeals
• Citation: 782 So.2d 786
• Parties: Brenda Delle GILBERT v. TYSON FOODS, INC.
• Decision Date: 23 June 2000

782 So.2d 786

Brenda Delle GILBERT
v.
TYSON FOODS, INC

2990096.

Court of Civil Appeals of Alabama.

June 23, 2000.

Certiorari Denied October 20, 2000.

Patrick M. Lamar, Huntsville, for appellant.

Jack W. Torbert and Rebecca A. Walker of Torbert, Torbert & Walker, L.L.C., Gadsden, for appellee.

Alabama Supreme Court 1991920.

On Application for Rehearing

THOMPSON, Judge.

The opinion of April 21, 2000, is withdrawn, and the following is substituted therefor.

782 So.2d 787

On December 18, 1996, Brenda Delle Gilbert ("Gilbert") sued her employer, Tyson Foods, Inc. ("Tyson"), seeking workers' compensation benefits for an injury she suffered while she was employed by Tyson. Gilbert alleged in her complaint that in November 1996, during her shift at the Tyson facility where she worked, she was hit in her back by a coemployee and suffered injuries as a result of that incident. On September 10, 1998, the trial court held a hearing, at which it heard ore tenus evidence. On September 15, 1999, the court entered a judgment in favor of Tyson, finding that Gilbert was voluntarily engaged in horseplay with the coemployee at the time she was injured, and that, therefore, she was not entitled to workers' compensation for her injury. Gilbert appeals

Gilbert argues that the trial court erred in denying her compensation benefits because, she says, she was not engaging in horseplay when she was injured. Section 25-5-51 states, in part, that "no compensation shall be allowed for an injury ... caused by the willful misconduct of the employee...." § 25-5-51, Ala.Code 1975.

Gilbert had been employed by Tyson since March 1996. In November 1996, at the time of her injury, she was employed in the deboning section of the Tyson facility. Gilver Valasquez¹ was a coemployee who worked in the same section with Gilbert. Gilbert testified that since the beginning of her employment with Tyson, Valasquez "was all the time hitting [her] with his fist and pinching [her] and pushing [her] around." Gilbert further testified that Valasquez frequently came up behind her and grabbed her buttocks and that on one occasion he had hit her in the breast with his fist. Gilbert testified that this conduct by Valasquez occurred every day "except for the days he was not there or I was not there."

The record reflects that on November 11, 1996, Valasquez walked by Gilbert and struck her on the arm. Gilbert then hit Valasquez and turned around and continued working with her back to Valasquez. Valasquez approached Gilbert from behind and hit her on her back between her shoulder blades. Gilbert turned around and told Valasquez she was going to "kill him." Valasquez ran away. Gilbert testified that she told Mike Speagle, the company nurse, that same day, that Valasquez had struck her. Gilbert claims that as a result of Valasquez's striking her, she ultimately underwent surgery for a cervical discectomy and the fusion of a ruptured disk in her neck.

Carolyn Cox, a supervisor in the deboning section of the facility, investigated Gilbert's report that Valasquez had struck and injured her. Cox's report from her investigation states, in part:

"In her medical file it shows that she had gone to the nurse & complained that Gilver had hit her in the chest on 11/6/96 but we didn't know about that until I checked tonight. She went in on 11/8 & complained about her back & had the nurse rub something on it. She didn't tell us about that either. On 11/12 the nurse told me about Brenda saying she had been hurt by Gilver & was complaining about her shoulder & arm & hand. She only told us then because we confronted her.

"Brenda & Gilver were always kidding & playing around. He helped her get caught up on her job & only when Brenda was not in the mood did she get angry. When he was hitting on her she hit him back. Everyone around them

782 So.2d 788

agreed that they were hitting on each other but no one noticed that it was as bad as Brenda is trying to say."

Cox wrote another report from her investigation. That report states:

"Brenda grades wings on lines 1-4 in debone. On 11-11-96 while Brenda was grading, Gilver Velazquez [sic] came by & punched her on the right arm. Brenda then punched him back on his arm. Gilver then hit Brenda on her right shoulder blade area with his fist. Gilver laughed when Brenda said `I'm going to kill you' & he took off running around the front of the lines to the line-one area. John Waldon yelled to Brenda to go get him & Brenda said `I'm not leaving the line.' Gilver came back around to where he was picking up wings & as he did he grabbed [himself] in the crotch area of his body and made an obscene gesture. Brenda says he makes these gestures

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