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02/24/95 COASTAL LUMBER COMPANY v. MICHAEL L.

February 24, 1995

COASTAL LUMBER COMPANY
v.
MICHAEL L. JOHNSON



Appeal from Clarke Circuit Court. (CV-92-188). J. Richmond Pearson, Trial Judge.

Released for Publication Msrch 5, 1996.

Houston, Almon, Shores, Ingram, Cook, and Butts, JJ., concur.

The opinion of the court was delivered by: Houston

HOUSTON, JUSTICE.

The defendant, Coastal Lumber Company ("Coastal"), appeals from a judgment entered on a $400,000 general verdict in favor of the plaintiff, Michael L. Johnson, in this action seeking compensatory and punitive damages under Ala. Code 1975, § 25-5-11.1, for wrongful termination of employment. We affirm.

Two issues are presented for our review:

1) Whether the evidence was sufficient to submit the wrongful termination claim to the jury; and

2) Whether Coastal was entitled to a new trial on the ground that Johnson's attorney had failed to disclose before the trial the name of an expert witness whom he intended to, and did, call to testify at the trial.

Coastal first contends that the evidence was insufficient to submit the wrongful termination claim to the jury and, therefore, that the trial court erred in denying its motions for a directed verdict and then later a judgment notwithstanding the verdict.

Coastal hired Johnson on August 28, 1992, as a "lumber puller" on the "green chain." This job involved removing lumber from a conveyor belt and stacking it. His immediate supervisor at that time was Ronald Mayo. Johnson injured his knee on September 3, 1992, and sought workers' compensation benefits. After missing several days of work, Johnson returned to work at Coastal, but, on his doctor's orders, he was on light-duty work. Johnson satisfactorily performed this work under supervisor Dale Goodman until September 15, 1992, when, 12 days after his injury, Coastal terminated his employment. Ronald Mayo and Coastal's plant manager, Joe Webb, noted in a "Report of Disciplinary Action" that Johnson's employment had been terminated because he had "not [been] performing [his] job duties very well" and that Johnson had been "making it hard on his fellow workers." That report also stated: "Termination due to unsatisfactory probationary period." Webb testified that Johnson had been fired because of poor job performance in connection with his work as a "lumber puller" on the "green chain."

Johnson testified, in part, as follows:

"Q. Were you off Friday, September 4?

"A. Yes, sir.

"Q. Were you off Monday, September 7?

"A. Yes, sir. That Monday I called in and Mr. Goodman at the time was in the office. I relayed the message I would not be in, for him to give to my supervisor, Mr. Mayo. He said okay.

"Q. Why did you indicate you wouldn't be in?

"A. I was still having problems with my knee. It was still swollen and painful.

"Q. Tuesday was September 8th. Did you go to Coastal on Tuesday, September 8th?

"A. Yes, sir.

"Q. Did you have a conversation there with Mr. Webb?

"A. Yes,sir.

"Q. Tell me what you and Mr. Webb said to each other.

"A. Mr. Webb said that he wanted me to go and punch the clock and sit down and don't do anything. I told Mr. Webb I would like to stay in compliance with the doctor's instructions, which were to come back and see him, and after seeing a doctor, I would be back to work. At that point Mr. Webb became upset and stated that didn't suit him.

"Q. He got mad when you told him you wanted to go back and see the doctor?

"A. He became very upset.

"....

"Q. Go ahead.

"A. At the same time -- he eventually asked the secretary to make an appointment for me to see the doctor on the 9th, which I did go.

"Q. Before we get to the 9th, did Mr. Webb offer you any kind of job there at Coastal Lumber Company reading gauges?

"A. No, sir.

"Q. He said he just wanted you to punch the clock and sit down?

"A. He said he wanted me to punch the clock, sit down, don't do anything.

"Q. Did he say why he wanted you to do that?

"A. It was something pertaining about his insurance, he didn't want it to go up, which I didn't really understand it. So, I just told him I would like to comply with the doctor's instructions, you know, I will be back to work.

"Q. Mr. Webb told you he didn't want his insurance to go up?

"A. Yes, sir.

"Q. He got mad during that conversation?

"A. He was upset.

"Q. Did you go back to see the doctor on September 9?

"A. Yes, sir."

Johnson also testified that Ronald Mayo told him on September 15, 1992, that Coastal was "cutting back" and that he was not needed; that he was told two days later, on September 17, that he had been fired, but that his job performance was not mentioned at that time as a reason for his termination; and that he had never received any oral reprimands or warnings in connection with his performance as a "lumber puller." Although Webb testified that Coastal had terminated Johnson's employment because he had performed poorly as a "lumber puller" and that Coastal had made every attempt to keep good personnel records, no written reprimands or warnings appeared in Johnson's personnel file in connection with his job performance as either a "lumber puller" or as a light-duty laborer. In addition, Coastal's personnel records indicated that Johnson had been cited for unexcused absences on September 4, 7, 8, 9, 16, and 17, even though Johnson was off from work on September 4, 7, 8, and 9, because of his injury and even though he was not employed at Coastal on September 16 and 17.

Goodman, who had had no complaints about Johnson's performance of his light-duty tasks, testified as follows:

"Q. In May of '92, did your employment with Coastal Lumber Company end?

"A. It did.

"Q. How did it end?

"A. It is sort of a long story. The latter part of April, I broke my leg riding horses, and I had it operated on. I went back to work the following week and done my time cards the following week. I started going in in the morning, staying for two or three hours. They hired a new man. I got to asking around what his job was. No one told me. I went, asked Mr. Webb was my job in jeopardy because I broke my leg. He said if I broke it here it would. He said you broke it on your own time.

"Q. You're talking about Mr. Joe Webb, seated at the edge of the defense table?

"A. That's correct.

"Q. Mr. Webb told you if you broke your leg at the Coastal plant ...

"A. That's correct.

"Q. ... that he would have done what?

"A. He would [have] fired me.

"....

"Q. When you worked at Coastal Lumber Company, did you know Michael Johnson?

"A. I did.

"Q. Did you have occasion for Michael Johnson to work under you, under your supervision while you were employed at Coastal Lumber Company?

"A. That's correct.

"Q. How would you classify the job that he had, as light duty, or heavy duty, or what?

"A. When he was working for me?

"Q. Yes, sir.

"A. When he was working for me it was light duty.

"....

"Q. I want to ask you, did he do his job satisfactorily while he was working light duty under your ...


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