Smith v. Dunlop Tire Corp.

Decision Date19 May 1995
Citation663 So.2d 914
Parties149 L.R.R.M. (BNA) 2892, 11 IER Cases 129 Michael D. SMITH v. DUNLOP TIRE CORPORATION. 1931702.
CourtAlabama Supreme Court

Jay E. Emerson, Jr. of Higgs, Emerson & Dezenberg, Huntsville, for appellant.

D. Edward Starnes III and Jeffrey T. Kelly of Lanier, Ford, Shaver & Payne, P.C., Huntsville, for appellee.

MADDOX, Justice.

This is a retaliatory discharge case. The issues presented are (1) whether the trial court committed reversible error by striking the plaintiff's affidavits in opposition to the defendant's motion for summary judgment; and (2) whether the trial court committed reversible error by granting the defendant's motion for summary judgment. We affirm the summary judgment entered in favor of the defendant, Dunlop Tire Corporation.

The plaintiff, Michael D. Smith, was injured in an on-the-job accident while employed as a mold servicer at a tire manufacturing plant operated by Dunlop in Huntsville, Alabama. After the company nurse advised Smith to see a doctor concerning the injury to his arm, Smith's supervisor drove him to a doctor who examines Dunlop's employees who have been injured on the job. The doctor diagnosed Smith's injury as a sprained left wrist and instructed him not to return to work for two days. Smith reported the doctor's diagnosis and order to the company nurse, who in turn told him to report back to work according to the doctor's instructions. When Smith returned to work three days later, he was informed by David Gooch, personnel manager for Dunlop, that he had violated the attendance policy set out in Dunlop's collective bargaining agreement with his union, and that his employment was, therefore, terminated.

Smith averred in his complaint that he filed a "First Report of Injury" with the company nurse regarding his accident, in accordance with Alabama's Workers' Compensation Act. Dunlop Tire Corporation admitted the allegation in its answer to the complaint. Therefore, for the purpose of this appeal, we hold that Smith filed a workers' compensation claim.

Smith sued Dunlop and Gooch, claiming that he was fired in retaliation for his filing a workers' compensation claim following his on-the-job injury. Smith voluntarily dismissed Gooch from the lawsuit, and his claim against Dunlop proceeded to a trial by jury. During the trial, the judge granted Dunlop's motion for a mistrial. 1 Thereafter, Dunlop filed a motion requesting the trial court to reconsider its denial of Dunlop's motion for summary judgment, which the trial court did. The trial court granted Dunlop's motion to strike certain affidavits submitted by Smith in opposition to Dunlop's motion for summary judgment and granted the motion for summary judgment. Smith appeals.

In his complaint, Smith claimed that Dunlop had violated § 25-5-11.1, Ala.Code 1975, contending that Dunlop had terminated him from his employment at Dunlop in retaliation for his filing of a workers' compensation claim. 2 Dunlop, on the other hand, contends that Smith was terminated pursuant to the "no fault" attendance policy in the collective bargaining agreement between Dunlop and Smith's union, under which absences resulting from an occupational accident are not "excused absences."

Smith is a member of Local 915 of the United Rubber, Cork, Linoleum and Plastic Workers of America. Dunlop and the Union are parties to a collective bargaining agreement that governs the employment terms and conditions for all bargaining unit employees, including Smith. As a part of its labor agreement, Dunlop negotiated with the Union a "Memorandum of Agreement" regarding absences. The Memorandum contains a "no fault" absence control program, under which absences are counted against an allowable quota without consideration of the cause or duration of the absence. However, not every absence would subject an employee to termination.

The Memorandum provides, in part, as follows:

"All occurrences of absences shall be included in this program other than the following:

"1. Jury Duty

"2. Military Duty

"3. Contractual Leave for Death in Family

"4. Union Business

"5. Attendance at a Compensation Hearing or Deposition

"6. Disciplinary Leave

"7. Vacation

"8. Permission or Leave of Absence (non-medical)"

Under the terms of the Memorandum, absences are subject to disciplinary action in accordance with § 3.02 of the collective bargaining agreement, which provides for a five-step discipline system. The first three steps are written warnings, the fourth step is a written warning and a suspension, and the fifth step is discharge. In accordance with the collective bargaining agreement, Dunlop issued first-, second-, and third-step written warnings to Smith for various absences. Dunlop also issued a fourth-step written warning and suspended Smith for three working days because of four absences. After this fifth and final occurrence, Smith was given a termination notice, which stated that the termination was "pursuant to our step discipline system and the termination step was [based on] our Attendance Guidelines."

Thereafter, Smith filed a grievance under the collective bargaining agreement, protesting his discharge, claiming that Dunlop had improperly terminated him, because, he said, his absence was with permission from the company nurse, a Dunlop employee. The labor agreement provides that such grievances may be submitted to an arbitrator for a final and binding decision. Smith pursued his grievance to arbitration. Arbitrator H. Elsworth Steele, chosen by Dunlop and the Union, held a hearing on Smith's grievance. Smith and several representatives, both from the Union and from Dunlop, presented testimony, called witnesses, and submitted documentary evidence in support of their positions.

In denying Smith's grievance, Arbitrator Steele made the following findings:

"Prior to July, 1992, Smith was properly at Step 4 of the Attendance Program. He had to go 90 days from April 23, 1992, without a chargeable absence. He had been clearly warned of this fact and was aware that in the past, days of absence caused by occupational accidents had been charged against him.

"The Union's further argument that Smith's absences on July 14 and 15 cannot be counted because the Company through its 'agent,' Dr. Palmer, told Smith not to come to work, is not persuasive. Many, if not most, times a sick or injured employee sees a doctor, the doctor tells the worker not to return to work for a given time. Despite this fact, the parties agreed in 2(B) of MOA # 8 that absences due to sickness would count as one occurrence even if they were certified by a doctor. The parties included no exception for patients 'ordered' by 'Company doctors' to stay at home for a period of time."

Smith argues that under the attendance program as defined in the collective bargaining agreement, if a person receives permission to leave the plant or to miss time from work, then that absence is excused. Thus, contrary to the arbitrator's assertions, Smith argues that the company nurse, a Dunlop employee, gave him permission, a recognized exception under item eight of the Memorandum. Based on these facts, Smith contends that he has a valid claim for retaliatory discharge, because he was employed by the defendant; he sustained a work-related accident and injury; he filed a claim for workers' compensation and that claim was accepted by the company; he obtained medical benefits pursuant to the Workers' Compensation Act; and he was subsequently terminated without just cause.

Smith asserts that the trial court committed reversible error by granting Dunlop's motion for summary judgment. A summary judgment is appropriate when there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. Rule 56(c), A.R.Civ.P.; Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988). In regard to actions brought pursuant to § 25-5-11.1, this Court has held:

"[A]n employee may establish a prima facie case of retaliatory discharge by proving that he was 'terminated' because he sought to recover worker's compensation benefits, which would be an impermissible reason. The burden would then shift 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."

Twilley v. Daubert Coated Products, 536 So.2d 1364, 1369 (Ala.1988). See also Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1122 (Ala.1992).

In Graham v. Shoals Distributing, Inc., 630 So.2d 417, 418 (Ala.1993), this Court discussed the burden on a plaintiff when an employer proffers a legitimate reason for a termination and the matter is pending on a motion for summary judgment:

"In the context of a summary judgment motion by the [employer] in a retaliatory discharge action, this Court has said:

" 'If the [employer] has supported a summary judgment motion with evidence of a legitimate reason for terminating the [employee], the [employee] must then refute that showing with his own prima facie case; of course, the [employee] has no burden to produce evidence before trial until the [employer] has made and properly supported a motion for summary judgment. If the [employer's] showing of a legitimate reason is conclusive enough to establish that "there is no genuine [issue] as to [that] material fact and that the moving party is entitled to a judgment as a matter of law," Rule 56(c), Ala.R.Civ.P., the [employee] would also have to produce evidence to refute that showing.' "

630 So.2d at 418 (quoting Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1122 (Ala.1992)). See, also, Provo v. Continental Eagle Corp., 650 So.2d 881 (Ala.1994); Terry v. Lee Apparel Co., 656 So.2d 811 (Ala.Civ.App.1994); see, also, Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 317 (Ala.1992); Overton v....

To continue reading

Request your trial
10 cases
  • Dunlop Tire Corp. v. Allen
    • United States
    • Alabama Supreme Court
    • October 2, 1998
    ...603 So.2d 1004 (Ala.1992). Four other Justices and I, who are concurring in the majority opinion, concurred in Smith v. Dunlop Tire Corp., 663 So.2d 914 (Ala.1995). These cases are distinguishable from this present case. Here, material issues of fact had to be resolved by the trier of facts......
  • Alexander v. Jitney Jungle Stores of America, Inc.
    • United States
    • Alabama Supreme Court
    • October 20, 1995
    ...MADDOX, Justice (dissenting). I must respectfully dissent, because I believe that this case is factually similar to Smith v. Dunlop Tire Corp., 663 So.2d 914 (Ala.1995), in which the trial court granted the employer's motion for a summary judgment against the employee's claim that he had be......
  • Hale v. Hyundai Motor Mfg. Ala., LLC.
    • United States
    • Alabama Court of Civil Appeals
    • January 6, 2012
    ...So.2d 221, 226 (Ala.Civ.App.2002) (quoting Syncro Corp. v. Suttles, 814 So.2d 873, 876 (Ala.Civ.App.2000)); see also Smith v. Dunlop Tire Corp., 663 So.2d 914 (Ala.1995); Hiatt v. Standard Furniture Mfg. Co., 741 So.2d 407 (Ala.Civ.App.1998). The facts surrounding Hale's discharge are large......
  • Gordon v. JB Hunt Transport, Inc.
    • United States
    • Alabama Court of Civil Appeals
    • October 1, 1999
    ...Foods of Alabama, 613 So.2d 359 (Ala.1993); Goodwin v. City of Fultondale, 706 So.2d 766 (Ala.Civ.App.1997). In Smith v. Dunlop Tire Corp.. 663 So.2d 914, 917 (Ala. 1995), the Alabama Supreme Court addressed a plaintiff's burden in responding to a summary-judgment motion once the employer h......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT