Appeal from Elmore Circuit Court. (CV-93-188). Sibley Reynolds, Trial Judge.
Cook, Almon, Shores, and Kennedy, JJ., concur. Houston, J., concurs specially.
The opinion of the court was delivered by: Cook
Tommy Gresham appeals from a judgment based on a directed verdict in favor of the defendant Schlumberger Industries, Inc., on Gresham's claim seeking damages for an alleged retaliatory discharge. We reverse and remand.
In December 1989, Tommy Gresham injured himself while working at Schlumberger's plant. Following back surgery, his physician gave him a 10% impairment rating. He returned to work in July 1990. According to Gresham, he was again injured in October 1990, but continued to work until December of that year, when his back condition forced him to again seek medical attention. In February 1991, Gresham had surgery on his back; he was assessed an additional 2% impairment rating as a result of his second injury. In July 1991, Gresham's doctor released him for light-duty work, with the following restrictions: "no lifting more than 35 pounds; no walking more than two hours; no standing more than two hours; no prolonged squatting; no bending; limited reaching; and no twisting". Appellee's Brief, p. 10, quoting R.T. 76-77.
It is not disputed that the job Gresham had before his injury required him to lift weight outside the limitations imposed by the doctor. Gresham testified that after his doctor imposed the restrictions he contacted Schlumberger approximately 20 times over the next few months to inquire about a light-duty job. Paul Schindler, Schlumberger's personnel director, testified that there were no jobs available that permitted him to work within the restrictions prescribed by his doctor. Hence, Schlumberger contended, it told Gresham that when those limitations were lifted, it would see about finding an appropriate job for him. In January 1992, the doctor, at Gresham's request, revised Gresham's lifting limitation to 50 pounds; however, the other restrictions remained in place. Again, Schlumberger informed Gresham that there were no jobs within the restrictions prescribed by his doctor. Gresham's medical restrictions remained in place from December 1990 until July 1992. He was paid temporary total disability benefits from December 1990 through December 1991 and during that time Schlumberger paid all his medical expenses. Gresham testified that in January 1992, a few weeks after he had settled his worker's compensation claim against Schlumberger, he contacted Paul Schindler to inquire about a job at the plant.
"A. I called Paul Schindler on the 10th--
January the 10th to check on my job status.
"Q. What, if anything, was said to you by Mr. Schindler?
"A. I asked him could I come down. I mainly called to see if he was in. And he told me there wasn't no need in coming down. He said that he had talked to Hank Golden and others and they had decided to terminate me.
"Q. Was that all he said? Did he say anything about your injury?
"A. He did not say nothing about my injury. He said they didn't have no light-duty work and he thought it was best for the company to terminate me.
"Q. Did he say anything about disabilities and light duty?
"A. He just said he didn't have nothing on light duty.
"Q. Nothing about disabilities?
"A. No--about disabilities? He did. He did say something about disabilities. He said if he was going to bring somebody back to work that it wouldn't be somebody that was--that had disabilities.
"Q. Now, he told you you were terminated?
"Q. So what, if anything, did you do after that?
"A. I went to Steve Schmitt's office in Tallassee, which is an attorney. And talked to Steve Schmitt and Clay Hornsby, which is--was an associate of his. And they--
"Q. Let me ask you this. When was the next time you contacted Schlumberger?
"A. The following Monday I had a phone call asking me to come talk ...