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03/17/95 MILLEY L. BULLION v. JMBL

March 17, 1995

MILLEY L. BULLION
v.
JMBL, INC., D/B/A FOODLAND DISCOUNT FOODS AND D/B/A L & L SERVICES, INC.



Appeal from Colbert Circuit Court. (CV-93-390). N. Pride Tompkins, TRIAL JUDGE.

Released for Publication June 27, 1995.

Butts, Hornsby, C. J., and Almon, Houston, and Ingram, JJ., concur.

The opinion of the court was delivered by: Butts

BUTTS, JUSTICE.

The plaintiff Milley L. Bullion appeals from a summary judgment in favor of the defendant JMBL, Inc., doing business both as Foodland Discount Foods and as L & L Services, Inc. Bullion's action alleged a retaliatory discharge in violation of Ala. Code 1975, § 25-5-11.1, and disability discrimination in violation of 42 U.S.C. §§ 12101-12213 (1994).

In February 1990, JMBL employed Bullion on a part-time basis as a cashier at a grocery store. Later, it transferred her to the produce department of its store, where Bullion suffered an on-the-job injury to her back on April 25, 1990. As a result of her injury, Bullion was unable to return to work until April 1992. She received a permanent partial impairment rating of approximately 7 1/2 % to 18%. When she returned to work, her physician restricted her hours of work and restricted her lifting for six weeks. Bullion was later released from all work restrictions and was permitted to work eight-hour shifts. She requested that a stool be placed near the cash register in order to accommodate her need to alternate between standing and sitting. JMBL granted that request. Later, she was put on part-time status as a cashier, and she worked on that basis until she was laid off in April 1993.

On July 29, 1993, Bullion sued JMBL, alleging that she had been terminated solely for maintaining an action against JMBL to recover workers' compensation benefits, and that her termination violated Ala. Code 1975, § 25-5-11.1. On November 9, 1993, Bullion amended her complaint, contending, alternatively, that her termination violated the "Americans with Disabilities Act of 1990" (hereinafter referred to as the "ADA"), 42 U.S.C. §§ 12101-12213 (1990). On September 19, 1994, the trial court entered a summary judgment in favor of JMBL. Bullion appeals.

On a motion for a summary judgment, the movant has the burden to make a prima facie showing that there is no genuine issue of material fact and that he is entitled to a judgment as a matter of law. Rule 56, Ala.R.Civ.P. See, also, Willingham v. United Ins. Co. of America, 642 So. 2d 428 (Ala. 1994), and the cases cited therein. Until the moving party has made a prima facie showing that there is no genuine issue of material fact, the opposing party has no duty to establish a genuine issue of material fact. Willingham, supra. This case was filed after June 11, 1987; accordingly, the "substantial evidence rule" applies to the ruling on the motion for summary judgment. In order to defeat a properly supported motion for summary judgment, the nonmovant must present substantial evidence supporting his position and creating a genuine issue of material fact. Ala. Code 1975, § 12-21-12; Betts v. McDonald's Corp., 567 So. 2d 1252 (Ala. 1990). "Substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved." West v. Founders Life Assurance Co. of Florida, 547 So. 2d 870, 871 (Ala. 1989).

Marlon Wilson, the JMBL store manager, testified that after Bullion returned to work in April 1992, she began complaining about not being a full-time employee. Wilson stated that he was unable to schedule Bullion for more hours because her personal schedule conflicted with the hours he needed her to work and because he did not have a full-time position available. Wilson testified that his chief complaint with Bullion after she returned to work was that she wanted to work full-time but wanted flexible hours during the week and wanted weekends off.

Wilson stated that on several occasions he had complained to Larry Willis, an employee of L & L Services, who supervised the managers of JMBL, about the scheduling problems he was experiencing with Bullion. Willis corroborated Wilson's testimony, stating that he had advised Wilson to try to work around the problem he was having with Bullion concerning her scheduling difficulty.

Bob Love, the president of JMBL, and John Maples, the human resources manager for a company that provides management support to JMBL, testified that, because the store was preparing to close and to open later in a larger location, Bullion was selected to be laid off because JMBL needed to reduce the number of its part-time employees during the transition. Apparently, the reduction in part-time employees was undertaken in order to allow full-time employees to maintain, at a minimum, 40 hours per week.

On April 18, 1993, Love advised Bullion that she was being laid off effective April 19, 1993. On April 21, 1993, Bullion reapplied for employment with JMBL, stating in her employment application that she preferred full-time work on the day shift and that she was available to work Monday through Friday but not on Saturdays or Sundays. Maples testified that Bullion was not rehired because of these stipulations in her employment application and because of the scheduling problems JMBL had previously had with her.

Love stated that, as president of JMBL, he made the decision to lay off Bullion and that his decision was based on the fact that Wilson and Willis had reported to him that Bullion had a bad attitude, was difficult to work with, was loud and abusive, and did not care about JMBL's customers. Additionally, the court heard testimony indicating that Bullion had made racist remarks to customers, was obnoxious, and was unruly while at work. The decision to lay off Bullion, Love testified, was made while reviewing the need to reduce the number of employees.

However, Bullion contends that Love terminated her employment because she had filed a workers' compensation claim based on her injury and because this injury disabled her and required her to use a stool, i.e., a special accommodation. As evidence that she was wrongfully terminated, Bullion testified that within five days after she had been laid off she saw a sign in JMBL's window advertising that it was accepting employment applications; that JMBL made no complaints ...


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