from Calhoun Circuit Court (CV-12-900631)
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.
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
"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."
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."
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.
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.
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.
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
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.
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.
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.
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
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.
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
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.
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.
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.
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!"
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
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.
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.
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 ...