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RETALIATORY DISCHARGE FOR FILING WORKERS' COMPENSATION CLAIM - ALLEGED CONTRADICTION OF DEPOSITION TESTIMONY BY AFFIDAVIT - FOSTER V. NORTH AMERICAN BUS INDUSTRIES, INC.

Foster v. North American Bus Industries, Inc., [Ms. 1150716, Apr. 28, 2017] __ So. 3d __ (Ala. 2017). In a unanimous decision authored by Justice Murdock (Stuart, C.J., and Bolin, Main, and Bryan, JJ. concur), the Court reverses a summary judgment in favor of an employer on a claim for retaliatory discharge under § 25-5-11.1, Ala. Code 1975.

The Court reiterates settled law concerning the burden-shifting procedure applied in retaliatory discharge cases:

“We hold that an 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.”

Ms. * 16, quoting Twilley v. Daubert Coated Prods., Inc., 536 So. 2d 1364, 1369 (Ala. 1988). Foster, the employee, had been briefly absent from work on two distinct occasions as a result of the alleged on-the-job injury. Following her second absence related to the alleged on-the-job injury, the employer terminated Foster. It contended that its legitimate reason for doing so was the employee’s failure to adhere to its policy concerning reporting absences from work and documenting same with a proper medical excuse.

In finding that genuine issues of fact precluded summary judgment, the Court applied several factors in determining whether a discharged employee has established a prima facie case of retaliatory discharge:

“1) knowledge of the compensation claim by those making the decision on termination, 2) expression of a negative attitude toward the employee’s injured condition, 3) failure to adhere to established company policy, 4) discriminatory treatment in comparison to similarly situated employees, 5) sudden changes in an employee’s work performance evaluations following a workers’ compensation claim, and 6) evidence that the stated reason for the discharge was false.”

Ms. *17-18, quoting Alabama Power Co. v. Aldridge, 854 So. 2d 554, 564-65 (Ala. 2002). The Court concluded that the employee had established a prima facie case of retaliatory discharge based on the relatively close proximity between the filing of her claim for workers’ compensation benefits and her discharge. Ms. *18. The Court also pointed to Foster’s testimony that immediately following her injury the employer’s nurse expressed a negative attitude and skepticism concerning the employee’s injury. Ibid.

The Court further held that because it was undisputed that the employee did not call into a supervisor when she failed to show up for work on July 23 and July 24, that the employer had established a legitimate reason [violation of company absence-reporting policy] for termination so that the burden shifted back to the employee to show that the stated reason was pretextual. Ms. *19-20. The Court concluded that the employee had submitted substantial evidence of pretext based on testimony of the employee’s husband that he had telephoned his wife’s supervisor on July 22 to inform the supervisor that the employee would not be at work for at least a few days. Ms. *20. The Court rejected the employer’s argument that this evidence was insufficient as a matter of law because it violated company policy requiring the employee to call in each day she was to be absent at least 30 minutes before her shift was to begin. The Court pointed to evidence that the employee had previously been absent as a result of the same alleged workplace injury and her absence had been reported by her husband to the employer in a similar manner as the July 23-24 absence. Ms. *21.

The Court also noted Foster’s testimony that shortly after her workplace injury, her supervisor had stated to her that she “might have to find something else.” Ms. *28. The employer cited Enoch v. Firestone Tire & Rubber Co., 534 So. 2d 266, 269 (Ala. 1988), contending that the employee’s affidavit testimony concerning this conversation could not create a genuine issue of fact in opposition to the employer’s motion for summary judgment because it contradicted the employee’s prior deposition testimony. The Court rejected this argument noting that references to the alleged conversation were present in the record before the taking of the deposition in the form of notes that the employee made concerning her interactions with the employer immediately after her injury. Ms. *29. These notes had been submitted by the employer in support of its motion for summary judgment. The Court noted that the employer did not question the employee about this note in her deposition. Ibid. The Court also concluded the testimony in the affidavit did not directly contradict the deposition testimony. Ms. *29-30.

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