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Foster v. North American Bus Industries, Inc.

Supreme Court of Alabama

April 28, 2017

Debra Mae Foster
v.
North American Bus Industries, Inc.

         Appeal from Calhoun Circuit Court (CV-12-900631)

          MURDOCK, Justice.

         Debra Mae Foster appeals from a summary judgment entered by the Calhoun Circuit Court in favor of North American Bus Industries, Inc. ("NABI"), in Foster's action alleging retaliatory discharge. We reverse the judgment of the trial court and remand the case.

         I. Facts

         NABI is a bus manufacturer whose principal production facility is located in Anniston. NABI has what it refers to as a "no-fault, points-based attendance and absenteeism policy." The "Attendance and Absenteeism Policy" ("the policy") organizes reasons for absences into sections, with points accumulated for the type of absence, ranging from 1/4 point to 2 points. An accumulation of six points or more qualifies an employee for "release[] from employment automatically." An "absence" is defined as "the failure of employees to be checked in when they are scheduled to work and/or to remain on the job for the entire scheduled shift." Under the section "Absences for the following will have zero (0) points charged" is listed "Job-related injury or illness, " along with other reasons such as "Jury Duty" and "Required Military Leave." Under the "1 Point" subsection of the "Point System (values assigned for the described occurrences)" section, the policy states, in part:

"Absence from two or more consecutive full shifts for the same reason if a medical excuse is provided that explains the nature of the illness.
"Absences due to illness or injury to the employee or members of their immediate family (spouse, children) require a medical excuse for verification purposes. The excuse must be presented on the day the employee returns to work or the absences will count (1) point for each day absent.
"Failure to provide adequate medical documentation for each day will result in (1) point for each day missed."

         Under the "2 Points" subsection, the policy states: "Absence with no call in. The call must be received at least (30) minutes prior to shift startup. *Note: Absences from two (2) consecutive shifts without proper notification will be considered a voluntary quit without notice." The policy also separately states: "Any absence must be reported at least thirty (30) minutes before scheduled startup. A supervisor or department manager must receive all calls. ... If the supervisor is not available, a message can be left on the appropriate department extension identified by the shift supervisor."

         NABI hired Foster as a full-time harness technician on May 29, 2012. Foster worked the day shift, from 6:00 a.m. until 2:00 p.m. or 4:00 p.m. She normally worked Monday through Friday. Foster's immediate supervisor was Tammy Roper, a senior team leader, whose job was to walk the floor to ensure that harness technicians met their quotas. Judy Wright is NABI's Staffing and Benefits Manager, a position in Human Resources ("HR"). According to NABI, Wright's job is to coordinate leave arrangements for employees with non-work-related illnesses or injuries. Also according to NABI, Wright and Roper made the decision to hire Foster, and they were the principal employees involved in the decision to terminate her employment.

         As a harness technician, Foster was responsible for putting relay switches, module boxes, and horn switches onto a steel panel. Foster would initially carry the empty steel panel to her station by herself. After she had completed her work on the panel, she would get another employee to help her carry it to a cart. The steel panels Foster worked on weigh about 14 pounds before the installation of switches and modules. After installation, they weigh about 22 pounds.

         On Tuesday, July 10, 2012, at around 3:30 p.m., Foster was drilling a screw into a steel panel when the panel flipped forward, knocking off Foster's safety glasses and hitting her in the forehead, causing her to fall back into her chair. Then, according to Foster, "everything got black." No one else witnessed the accident. Because Roper was on vacation that week, Foster first reported the injury to Carol Brasher, whose responsibilities included providing parts, assisting less experienced employees, and being a first responder for workplace injuries. After Foster sat in a chair by Brasher's desk for about 30 minutes, Brasher took her to the office of Debra Hale, NABI's on-site nurse. Among other things, it was Hale's job to coordinate leave and obtain health care for work-related illnesses or injuries. Hale was not in her office, so Brasher and Foster returned to Foster's work station and waited there. Sometime thereafter, Hale came to see Foster.

         Hale asked Foster what had happened, and Foster related the details of the accident. Foster informed Hale that she had a headache, and Hale assessed Foster for signs of a concussion. According to Hale, Foster had an abrasion on her right arm, but Foster did not exhibit any signs of serious head trauma. Another employee noted that Foster had a mark on her forehead. Hale told Foster that if she exhibited any further symptoms of headaches or any nausea, she should contact Hale and Hale would send Foster to the hospital for further evaluation.

         After Foster's shift ended on July 10, she drove herself home. Later that night Foster began feeling worse and started vomiting. Because of her worsening condition, Foster went to Regional Medical Center ("RMC") in Anniston the following morning instead of showing up for her shift at NABI. Hale then received a telephone call from an RMC employee (Foster had given the employee Hale's telephone number) telling her that Foster was there receiving treatment and claimed that her injuries were the result of a workplace injury. There is a dispute as to what occurred next in the conversation. According to Foster, the RMC employee informed Foster that Hale said that Foster was not injured on the job and therefore that NABI would not pay for her medical care, and Foster told the RMC employee that she wanted to be seen at RMC anyway. According to Hale, she told the RMC employee that NABI used Stringfellow Hospital for emergency visits and that NABI would not pay for Foster to be seen at RMC. Following a CT scan of her head and several other tests, Foster was diagnosed with a concussion, and she was given two shots to help with her pain.

         Foster was given a "Work/School Absence Form" from RMC dated Wednesday, July 11, 2012, which stated, in part: "Please excuse the above-named individual from work/school. They were seen today in the Emergency Department, and should be able to return to work/school in two (2) days from the above date." Foster testified that her husband, Randy Foster, dropped off this doctor's note at the guard station located at the front of the NABI facility with the understanding that the excuse was to be delivered to HR. Randy Foster also testified that he left this doctor's note with the security guards posted at the front of the NABI facility. Hale testified that Foster gave her this doctor's excuse when she returned to work on Monday, July 16.

         On Friday, July 13, 2012, Foster went to Oxford Family Practice, her primary-care physician at that time, for further evaluation. At the conclusion of that visit, Foster received a form from her physician stating that she should be excused from work for the dates of July 13 through 15 and that she could return to work on July 16, 2012. The form contained nothing more than the relevant dates and the doctor's signature. Foster testified that this was the excuse she brought in to Hale on July 16. NABI contends that Foster gave this excuse to Roper.

         NABI's attendance records show that Foster did not receive any points for her absences from July 11 through July 13, which were her remaining scheduled workdays that week, because she was listed as "Consecutive Days Absence only if medical documentation provided."

         Foster returned to work on Monday, July 16, 2012. Roper also returned to work from vacation on that date, and she was informed of Foster's accident. At around 9:30 a.m. that morning, Hale took Foster to Physicians' Care, an approved medical-services provider for NABI employees who had suffered on-the-job injuries, for evaluation. Physicians' Care released Foster for work on the same date, July 16, 2012, and Foster resumed her shift that day.

         Foster worked as usual between July 16 and July 18. Foster testified in an affidavit filed after her deposition that, during this period, she and Roper had a conversation in which Roper stated that Foster "might have to find something else." Foster responded: "Are you talking about another job?" Roper replied: "I'm just saying." Roper and NABI deny that this conversation occurred.

         On July 18, 2012, Patty Wyatt, one of Foster's coworkers, reported to Roper that Foster was feeling ill and nauseated. Wyatt and Roper went to check on Foster, and Foster reported that she had been throwing up. Roper noted that Foster was breathing heavily. Hale then came to Foster's station, and she took Foster to NABI's on-site doctor. After a while, Foster left work and went to Physicians' Care for treatment around 11:00 a.m.

         At 6:45 p.m. on the night of July 18, 2012, Foster returned to RMC complaining of abdominal pain, vomiting, and bloody stools. Foster was admitted to the hospital for further testing. Medical records show that Foster had an emergency CT scan of her head on July 18 but that it did not find any abnormalities to explain her symptoms.

         Randy Foster testified that he "personally left a message on Tammy Roper's voicemail on July 19, 2012, and told her that [Foster] was in the hospital and [he] did not know how long she would be in there, but she would be unable to go back to work for a while." He stated that he believed he used the hospital telephone to leave the message and that he placed the call before Foster's shift began. Roper testified that sometime after Foster's shift started she received a telephone call from Foster's husband informing her that Foster had been hospitalized and that Foster would be out for two or three days. An entry in Hale's contemporaneous notes for July 19, 2012 (a Thursday), states: "Debra [Foster] did not come into work. T[ammy] Roper received a phone call that she was in the hospital and would be out for a few days, per Debra's husband." NABI cites Randy Foster's telephone records to relate that he placed a call to Roper from his cellular telephone nearly two hours after Foster was to have started her shift.

         Hale telephoned Foster later in the day on July 19. Hale testified that she asked Foster if her hospitalization was related to her work injury, but Foster simply replied that she was on heavy medication and in no condition to talk so she would call her later. Foster testified that Hale told her during this conversation: "If you are in the hospital because of your injury at NABI, I have nothing to say to you!"

         Foster was discharged from the hospital on Sunday, July 22, 2012. Foster testified that her husband telephoned Roper on Sunday, July 22, and left a voicemail on her telephone stating that Foster had been released from the hospital but that she would be out of work until the doctor cleared her to return to work. Roper denies receiving any telephone call between July 22 and July 25 accounting for Foster's whereabouts during that period.

         Both Foster and Randy Foster testified that, after Foster was discharged from RMC, Randy Foster drove them to the NABI facility to deliver a doctor's note from RMC that excused Foster from working until August 6, 2012. The note stated, in part: "P[atient] was admitted to the hospital 7/19/12 [and] discharged 7/22/12 due to medical reasons. She will need ... leave until Wednesday 8/6/12 when cleared to return to work." Foster and Randy Foster testified that they were unable to go farther than the guard post at the front of the Anniston facility because Foster felt too sick and they did not have a pass to get into the facility. Accordingly, they left the note with the guards, instructing them to give the note to Roper.

         Roper denies ever receiving the note. NABI states that leaving medical excuses with the guards, who were not NABI employees, was not proper protocol. NABI also asserts that Foster could have entered the facility and given the note to someone in HR because she had her employee-identification card.

         It is undisputed that Foster did not show up for work on July 23 or July 24. Foster testified that she received a telephone call from Judy Wright on July 23 informing her that Foster was going to receive a point on her absence record because she was not at work that day. Wright denies making such a telephone call. On July 25, Foster called Wanda Maddox, another NABI ...


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