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November 10, 1994


Appeal from Etowah Circuit Court. (CV-91-550.01). William W. Cardwell, Jr., TRIAL JUDGE.

Rehearing Denied February 10, 1995. Released for Publication May 27, 1995.

Steagall, Maddox, Shores, Houston, and Ingram, JJ., concur.

The opinion of the court was delivered by: Steagall


Ruby Jo Griffin sued her employer, Gold Kist, Inc., seeking workers' compensation benefits for an on-the-job injury; Gold Kist terminated her employment while the action was pending, and Griffin amended her complaint to allege wrongful discharge, in violation of Ala. Code 1975, § 25-5-11.1. The trial court severed the two claims, and the retaliatory discharge claim proceeded to trial. At the close of Griffin's evidence, Gold Kist moved for a directed verdict, arguing that it had dismissed Griffin because she had exceeded the medical leave allotted to Gold Kist employees, and not in retaliation for filing her workers' compensation claim. The trial court denied this motion and denied Gold Kist's subsequent directed verdict motion made at the close of all the evidence. The jury returned a verdict for Griffin, awarding her compensatory damages of $60,000 and punitive damages of $40,000. The court entered a judgment on that verdict and denied Gold Kist's motion for a J.N.O.V. Gold Kist appeals.

Gold Kist argues that Griffin's retaliatory discharge claim is not supported by the evidence and that the trial court therefore erred in denying its directed verdict and J.N.O.V. motions. In reviewing the denial of these motions, we are bound by the same standard as the trial court; that is, we must determine whether the party with the burden of proof produced sufficient evidence to require a jury determination of the issues presented. Continental Eagle Corp. v. Mokrzycki, 611 So. 2d 313 (Ala. 1992). Additionally, we must view all the evidence in a light most favorable to the nonmovant and must entertain such reasonable inferences as the jury would have been free to draw. Continental Eagle Corp., at 316.

The evidence, viewed most favorably to Griffin, indicates the following: On August 30, 1989, while she was working as a machine operator for Gold Kist, she slipped on a wet concrete floor, fell, and injured her right knee. She promptly reported her injury to her supervisors; she finished her shift and then went to a local hospital for treatment. The hospital referred her to Dr. David Lindsey, an orthopedic surgeon, who diagnosed her injury as a dislocated right patella. Dr. Lindsey operated on her knee twice in March 1990, after which she returned to work for Gold Kist as an office helper. Griffin did not return to the plant where she had been working after this time. In mid-September 1990, Griffin underwent a third surgery on her knee.

In November 1990, Gold Kist changed its leave-of-absence policy for employees, to establish that the company would terminate the employment of any worker who did not return to work after a continuous, nine-month medical leave of absence. Gold Kist posted notice of the change in the plant where Griffin had worked; however, she did not return to the plant after her second knee operation. Griffin underwent two more surgeries before her doctors determined that she had reached maximum medical improvement in August 1991 and assigned her a 30% impairment rating to her right knee. On August 7, 1992, Gold Kist sent Griffin a letter of termination, which stated, in pertinent part: "In accordance with company policy, your employment has been terminated effective August 7, 1992 due to the expiration of your medical leave of absence."

At trial, Griffin offered into evidence copies of Gold Kist's personnel policies, which showed that Gold Kist considered medical leave to be discretionary, i.e., "a privilege to be earned," and that any employee seeking medical leave was required to fill out several forms requesting it. Griffin stated that she had never requested medical leave, had never been asked to sign any forms or paperwork regarding medical leave, and had not authorized Gold Kist to do this for her. She further stated that she had never been informed of Gold Kist's new policy of terminating employees who were out of work on a medical leave of absence for more than nine months and was not otherwise warned that her job could be terminated because of excessive leave.

Griffin also produced evidence that Gold Kist had terminated the employment of 22 persons under the leave-of-absence policy, 16 of whom had been on leave for reasons other than an on-the job injury. Of these 16, two were later rehired. The other persons whose employment had been terminated under this policy, including Griffin, were out on medical leave because of on-the-job injuries, and none of these had been rehired.

Gold Kist's human resources manager, E. Hugh Kinkaid, who was in charge of terminating Griffin's employment, conceded that the company required employees to fill out several documents requesting medical leave and to later supplement those documents if leave was extended. He admitted that the company had not required Griffin to do this, but stated that he sent a certified letter to Griffin informing her that she had been placed on medical leave; however, the receipt for the certified letter carried the signature "Amy Elrod"; Griffin testified that she did not receive the letter. Kinkaid also admitted that, under the leave termination policy, Griffin's employment should have been terminated in January 1992, when she had been away from her job for nine continuous months, instead of eight months later. Kinkaid blamed the delay in termination on a clerical error.

Section 25-5-11.1 provides:

"No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits under this chapter or solely because the employee has filed a written notice of violation of a safety rule pursuant to subdivision (c)(4) of § 25-5-11."

In Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364, 1369 (Ala. 1988), this Court established the following standard of proof necessary in an ...

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