from Mobile Circuit Court (CV-15-900376)
FoodService, a foreign corporation ("Merchants"),
appeals from a final judgment entered by the Mobile Circuit
Court following a jury verdict in a retaliatory-discharge
action filed by Denny Rice. The jury awarded Rice
compensatory damages of $314, 862.88 and punitive damages of
$944, 588.64. We affirm.
owns and operates a wholesale-food delivery business
throughout the southeastern United States. Rice began working
for Merchants in October 2012 as a delivery driver in its
Mobile, Alabama, shuttle yard. The Mobile yard is in
Merchants' Clanton division, which coordinates deliveries
in Alabama for the company. Merchants' largest customer
in the Mobile area was the Mobile School System. Rice was
injured on the job, and, when he returned to work following
his injury, Josh Averhart was the Clanton division's
transportation manager. Immediately below Averhart was
Rice's immediate supervisor, Brian Maryland.
24, 2014, after Rice had finished his own deliveries, Rice
decided to help another driver, Joe Paige, finish his
deliveries. Rice drove his personal vehicle to help Paige
unload food at Murphy High School in Mobile. The delivery for
Murphy High School was 600 cases, and Paige testified that
this required a driver to travel up and down the delivery
ramp 40 to 50 times to complete the delivery. According to
Paige, the ramp on the Merchants' truck trailer that day
did not fit the trailer. When that is the case, Merchants
instructs its drivers to secure the ramp with straps, but,
according to Paige, the straps have difficulty holding the
weight of the cases, the cart, and a driver. On one of
Rice's trips, as he was climbing up the ramp, a strap
broke loose, causing Rice and the ramp to hit the ground.
Rice landed awkwardly and jammed his neck and his back. Paige
telephoned Maryland to report the accident. Rice attempted to
work the next day, but with his injuries he was not able to
perform any heavy lifting.
saw a physician, who placed him on work restrictions. Because
the restrictions prevented Rice from commercial driving or
heavy lifting, there was no position at the Mobile shuttle
yard for Rice to perform. As a result, Rice was on leave from
work for approximately four and one-half months, and he
received full worker's compensation benefits during that
period. Rice regularly informed Maryland of his medical
condition and return-to-work status during his absence.
During Rice's absence, Merchants hired another driver to
make deliveries from the Mobile shuttle yard.
Wednesday, December 3, 2014, Rice's physician released
him to return to work effective Monday, December 8, 2014.
That same day, Rice provided Maryland with his
physician's return-to-work clearance form, and, according
to Rice, Maryland told him that he would get with a
supervisor and place Rice back on the work schedule. Rice
talked with Maryland again on December 7, 2014, and Maryland
told Rice that he and Averhart wanted to meet with Rice at
the Mobile shuttle yard at 5:30 a.m. the following morning,
which was around Rice's usual starting time for making
deliveries. On December 8, 2014, at 5:30 a.m., immediately
after Rice got out of his vehicle at the Mobile shipping
yard, Averhart and Maryland met Rice, and Averhart terminated
Rice's employment with Merchants. According to Rice,
Averhart told Rice that "[a]t this point we have more
drivers than we do routes and we don't need you [any]
testified that, after he was fired, he felt shocked,
"like somebody had sucker punched me right in the
face." He said he felt a lot of self-doubt, a lot of
stress, and he was "was up at night trying to figure out
how I'm going to take care of this, how am I going to fix
this, how am I going to pay the bills until [I get a
job]." At times, he would wake up in the middle of the
night in a sweat, and then he would pace up and down the
hallway. Rice testified that he developed trust issues as a
result of the firing. He also stated that he supports his
fiancée Michelle and her two daughters and that he
became a lot more irritable toward them after he lost his
job. He stated that he and Michelle had planned to get
married in 2015 but that their plans were indefinitely
postponed because of his trust issues.
the termination of his employment with Merchants, Rice did
not immediately begin looking for work because he knew that
it was not a good time of the year for drivers to be hired.
To meet expenses, Rice had to withdraw $20, 000 from his
401(k) retirement account. Rice then studied for and took
Alabama Department of Transportation tests to add further
endorsements to his commercial driver's license
("CDL") so that he would be qualified to pull
double-trailers and to transport hazardous substances. He
knew that the added endorsements would make him a more
marketable commercial driver. Rice also reached out to
contacts in his field, including a friend who worked at Estes
Express Lines ("Estes").
spring of 2015, Rice applied for and obtained a job with
Estes. Rice testified that, during his interview with Estes
before he secured the job, most of his time was spent
discussing the termination of his employment with Merchants.
Rice testified that that experience contributed to his belief
that his termination from Merchants could harm his future
employability if he were unable to remain with Estes.
began working for Estes on March 30, 2015. Estes pays its
drivers by the hour. When he was initially hired by Estes,
Rice earned $20.35 per hour. Eventually, he received a raise
to $24.33 per hour. For Estes, Rice works an average of 50
hours per week or more. It is undisputed that Rice works 18
hours or more per week more for Estes than he did for
Merchants, meaning that Rice works 936 hours more per year
with Estes than he did with Merchants. During his first full
year with Estes, Rice earned a total of $49, 000.
does not pay drivers by the hour. Instead, it pays based on a
productivity formula consisting of cases delivered, number of
delivery stops, mileage, and whether the full load is
actually delivered. At trial, Rice testified that he worked
an average of 32 hours per week for Merchants. Rice testified
that he typically got off work in the early afternoon at one
or two o'clock and that he had planned before he was
injured to start a side business mowing lawns. Rice further
testified that it was not possible to have such a side
business with the extra hours he works for
Estes. According to Merchants' records, on
average Rice earned $911.43 per week. According to Rice, his
effective hourly rate at Merchants was $28.48 per hour.
During his last full year with Merchants, Rice earned a total
of $42, 000.
February 6, 2015, Rice sued Merchants in the Mobile Circuit
Court alleging retaliatory discharge. Following discovery, on
June 2, 2017, Merchants filed a motion for a partial summary
judgment concerning the issue of "frontpay."
Frontpay refers to future earnings awarded in lieu of being
reinstated to a former position. In its motion, Merchants
conceded that, if Rice had been discharged for filing a
worker's compensation claim, he would be entitled to seek
compensation for the earnings he would have received between
the date his employment was terminated by Merchants (December
8, 2014), and the date he was hired by Estes (March 30, 2015)
-- a total of $14, 582.88. Merchants disputed, however, that
Rice was entitled (1) to an award of any future earnings from
the date he began working for Estes through a date just
before the trial began (June 9, 2017) --a total Rice calculated to
be $14, 824.00 -- or (2) to an award of future earnings from
the date of trial through Rice's estimated date of
retirement at age 65 (April 1, 2031) -- a total Rice
calculated to be $190, 855.71. Merchants argued that, as a
matter of law, Rice was not entitled to recover any future
earnings because "he makes more money in his new job
than he did with Merchants." In other words, Merchants
asserted that "Alabama's law makes clear that
because [Rice] currently takes home more money [with Estes]
than while employed by Merchants, he has suffered no future
lost wages or actual future economic damages that could
entitle him to a front pay award."
trial court heard Merchants' argument on its motion for a
partial summary judgment before the trial began, and it
"I'm going to let the evidence come out and you can
argue at the appropriate time. And you can, if you want to,
bring it up on a motion for a directed verdict. At this point
I'm going to deny your motion for a summary judgment on
that point and I'm going to let the evidence come
6, 2017, Merchants filed a motion in limine in which
it sought, among other things, to exclude former Merchants
employee John Nims from testifying at trial. Nims worked for
Merchants as a driver at the Pensacola, Florida, shuttle
yard. On May 12, 2014, he was injured on the job, and, like
Rice, he was placed on restriction from work by his physician
for an extended period. During Nims's absence, Merchants
hired another driver at the Pensacola shuttle yard to perform
deliveries. On January 8, 2015, Nims was cleared to return to
work for Merchants. Nims's employment was terminated on
the day he returned to work, for the same reason that had
been given to Rice, i.e., Merchants no longer had a position
open for him because it had hired another driver to fill his
position. Merchants did not attempt to place Nims in another
position in the company. Nims filed a retaliatory-discharge
action against Merchants that eventually was settled, with
Merchants admitting no fault.
motion in limine, Merchants contended that
Nims's testimony should be excluded because, it argued,
even if Nims's employment termination was considered to
be analogous to Rice's termination, one example does not
establish a "pattern or practice" of retaliatory
discharge by Merchants under Rule 404(b), Ala. R.
Evid. Merchants argued that, to fit within a
"pattern or practice," there must be evidence of
"a significant number of other employees in the
plaintiffs' protected class" or evidence indicating
that retaliatory discharge "was Merchants'
'standard operating procedure.'" (Quoting
Cooper v. Federal Reserve Bank of Richmond, 467 U.S.
867, 876 (1984).) Rice responded that he was offering
Nims's testimony for the purpose of establishing intent
on Merchants' part, not on the issue of punitive damages.
hearing on pending motions held a few days before the jury
was empaneled, the trial court denied Merchants' motion
in limine with regard to Nims, explaining:
"Let's talk about what happened to Mr. Nims. If you
look at the Alabama Rules of Evidence I think that in this
particular situation this other act can be offered for the
purpose for which [Rice is] offering this particular case to
show that Merchants, I guess, arguably was at least in these
two situations in the way they handled the return to work on
the part of the injured worker. ...
"... I'm going to deny [the motion in
limine] as to Nims."
trial, when Nims's video deposition was introduced,
Merchants raised several objections to specific portions of
his testimony but did not raise any objection predicated on
the notion that Nims should not be permitted to testify at
trial, Merchants defended its termination of Rice's
employment by contending that Rice was one of eight delivery
drivers covering eight delivery routes in Mobile; that
Merchants could not hold Rice's delivery routes open
during his lengthy medical leave, part of which was during
Merchants' busiest delivery season; and that, by the time
Rice was cleared to return to work, Merchants had a full
complement of eight delivery drivers and did not have enough
volume to justify employing a ninth driver.
introduced evidence indicating that Merchants' employee
handbook contained a policy as to what should be done when an
employee returns to work following a leave in which the
employee received worker's compensation benefits.
Specifically, Section 7.7 of the employee handbook provides:
"Any employee returning from non-FMLA medical leave of
absence under this Section will be allowed to return to his
or her former position if there is an opening available. If
there is no opening available, an effort will be made to
place the employee in another available position for which he
or she is qualified and capable of performing."
undisputed that Merchants did not follow the above-quoted
policy with regard to Rice because Averhart did not make any
effort to place Rice in another position in the company, even
though Averhart testified that he was aware of the policy.
Rice also introduced deposition testimony from one of
Merchants' corporate witnesses, Jan Farve, who initially
denied that Merchants had a policy for employees returning
from worker's compensation leave, but who later admitted
that Merchants' managers should have followed the policy
in Rice's case. Rice also introduced an e-mail sent from
Farve to Averhart, Maryland, and another supervisor on
January 8, 2015, after Farve learned that Nims's
employment had been terminated:
"With the changing federal WC [workers'
compensation] laws....going forward we do not need to term
someone right off of WC Leave. If their position isn't
open any longer, we need to find something for them to do,
and work the process. Thanks guys....[T]his one will probably
come back to bite us, so stay tuned, I'll probably need
also introduced deposition testimony from Merchants employee
Charles Tillman, who testified that in October 2014 he was
placed in a new-driver recruiting position in Newberry, South
Carolina, to recruit drivers for new business Merchants had
acquired. Tillman stated that the Newberry location went from
employing around 10 drivers to employing over 40 drivers. On
November 19, 2014, Farve sent Merchants' chief executive
officer Andy Mercier an e-mail asking him how many markets
Merchants needed to "ramp up" recruitment in at
that time, and Mercier responded: "All markets." In
a November 25, 2014, e-mail from Farve to a hiring recruiter,
Farve stated that "[w]e are in a spot where we need to
double our drivers for all branches." Rice also
introduced evidence indicating that on December 19, 2014, 11
days after Rice's employment was terminated, Merchants
posted an opening for a delivery driver for its Mobile
shuttle yard. Rice also introduced other Merchants' job
postings for drivers in Mobile and Pensacola between November
2014 and February 2015.
close of Rice's case-in-chief, Merchants made an oral
motion for a judgment as a matter of law solely with respect
to the issue of Rice's claim for lost future earnings.
"MS. KAFFER [Merchants' counsel]: Yes, sir. Your
Honor, we have a motion [for a] directed
verdict just on the issue of front pay damages.
The lost pay damages from the time Mr. Rice started with the
"His own testimony is that in his new employment he
makes more money than his old employment. For that reason and
the undisputed evidence in the record he cannot prevail on
the claim for lost pay from the time he started his new
"Evidence that if [he] had more time off work he could
have earned money with the lawn care business is too
speculative to support the damages that he's claiming.
"THE COURT: Go ahead, Mr. O'Hara [Rice's
counsel]. Any other motions besides that, Ms. Kaffer?
MS. KAFFER: No, sir.
"THE COURT: Go ahead and address that one issue on the
"MR. O'HARA: Judge, the law of Alabama on
retaliatory discharge says that we're entitled
compensatory damage and punitive damages just like any other
tort. I believe that because of the difference in pay systems
between Merchants and his new employer Estes we had to
extract from Merchants' pay system an hourly wage,
effective hourly wage, averaged over the period that he
worked there. Doing that we made a -- we presented
substantial evidence of loss in earning capacity and loss of
wages. He made close to [$4.15] per hour less. On that basis
I believe we presented substantial and sufficient evidence to
allow the issue to go to the jury for them to determine
whether we've met our burden and whether he's
entitled to those lost future wages.
"THE COURT: Anything else, Ms. Kaffer?
"MS. KAFFER: No, Your Honor.
"THE COURT: I'm going to deny [Merchants']
motion and let it go to the jury on that issue. I think
the[re is a] fact question with regard to the effect of the
subsequent employment as compared to his prior
the presentation of evidence from Merchants, the case
proceeded to the jury-charge conference. Merchants did not
move for a judgment as a matter of law at the close of all
the charge conference, Rice submitted a proposed jury
instruction with regard to lost future earnings that tracked
Alabama Pattern Jury Instruction -- Civil 11.17 for
"Loss of Future Earnings or Future Earnings
Capacity." The trial court rejected the proposed
instruction in favor of its own charge, explaining:
"On the future earnings charge it implies that part of
that is because of his physical limitations. I've taken
all that out. It's strictly on his loss of earning
capacity. They can look at his physical condition kind of --
Let me see how I put it in the charge so I can be clear on
this. What I said was this regarding future earnings. Denny
Rice's earning power or capacity before his injury and
what they are now -- This is what they can consider with
regard to the future lost wages. Denny Rice's earning
power or capacity before his injury and what they are now,
the type and degree of his alleged financial loss and whether
or not the jury is reasonably satisfied there will be future
financial loss and, if so, how long it will last. Here's
the only thing that I think might be confusing to the jury. I
disallowed [Rice's] expert. I don't know how else to
handle this because it's a correct statement of the law.
But if you decide that Denny Rice will lose future earnings
and has lost future earning capacity, you must then determine
the amount he is reasonably certain to lose and reduce that
to present value. That's a correct statement of the law.
I don't know how they will do it. They're just going
to have to make their best effort at it, I suppose.
There's been no testimony. I'm not aware of any
formula to use as a matter of law. There may be one but
I'm just not aware of it. I think they will have to use
their own discretion on that."
party registered an exception to the trial court's ruling
on this instruction.
lost future earnings, the trial court instructed the jury as
"Denny Rice says that Merchants FoodService's
conduct caused him to lose future earnings. To decide that
amount with regard to the loss of future earnings, you must
first determine the effect, if any, the injury had on his
future earnings. To decide this question you must consider
the following. Number one, Denny Rice's earning power or
capacity before this injury and what they are now and, two,
the type and degree of the financial loss and, three, whether
or not you are reasonably satisfied there will be future loss
and how long it will last. If you decide that Denny Rice will
lose future earnings then you must determine the amount that
he is reasonably certain to lose and reduce that amount to
its present value. Again, I want to tell you that in
determining the loss of earnings it has nothing to do with
his workman's compensation injury. This only pertains to
the claim that he is making against [Merchants] for being
did not object to this jury instruction.
trial court also explained during the jury-charge conference
that it believed Merchants was entitled to a limiting
instruction with regard to Nims's testimony:
"[Merchants' proposed charge number] 28. I am giving
the [Rule] 404(b)[, Ala. R. Evid., instruction]. I think
you're entitled to a limited instruction on that. I'm
going to instruct them that the evidence regarding John Nims
is admitted only for your consideration in determining
whether Merchants acted with the intent to terminate [Rice]
solely because he claimed workers' compensation benefits.
I take out that next sentence, you cannot consider in
assessing punitive damages because I think it's a little
bit misleading and it's not in the pattern charges. So
I'm not going to give that sentence. I will tell them,
however, they are to consider this evidence along with the
rest of the evidence but only for the purpose for which it
did not object to the trial court's modification of
Merchants' proposed instruction.
trial court instructed the jury as follows with regard to
"Now, I want to point out to you that the evidence
regarding John Nims is admitted only for your consideration
in determining whether Merchants acted with the intent to
terminate Denny Rice solely because he claimed workers'
compensation benefits. You will consider this evidence along
with the rest of the evidence but only for the limited
purpose for which it was admitted."
did not object to this instruction.
the trial court gave its instructions to the jury, Merchants
requested that the verdict form reflect that damages be
divided into past and future damages, as § 6-11-1, Ala.
Code 1975, allows. After some discussion with the trial court
and counsel for Rice, Merchants withdrew its request for a
verdict form that distinguished between past and future
damages. Thus, the verdict form submitted to the
jury asked the jury simply to distinguish between
compensatory damages and punitive damages.
jury deliberations, the jury asked a question concerning the
proposed calculation of Rice's lost-earnings damages that
Rice's counsel had presented in a trial exhibit during
closing arguments. The jury noticed a calculation error in
the trial exhibit and asked whether it could correct the
error. Merchants concedes that the trial court
correctly instructed the jury that "a factual question
about damages was within the province of the jury to
resolve." Merchants' brief, p. 5.
jury returned a verdict in Rice's favor, awarding
compensatory damages in the amount of $314, 862.88, and
punitive damages in the amount of $944, 588.64, for a total
of $1, 259, 451.52. The jury did not indicate the basis for
the compensatory-damages award. On June 20, 2017, the trial
court entered a judgment on the jury verdict.
19, 2017, Merchants filed a "Motion for Judgment as a
Matter of Law, To Alter, Amend, or Vacate the Judgment, or,
in the alternative, Motion for New Trial." In the
motion, Merchants contended that there was not substantial
evidence that Merchants had terminated Rice's employment
solely because he made a claim for worker's compensation
benefits. Merchants also argued that it was entitled to a
judgment as a matter of law because Rice "made more
money in his new job than he made at Merchants" and
that, thus, the issue of lost future earnings was erroneously
submitted to the jury. It contended that the verdict was
against the great weight or preponderance of the evidence or
that it was contrary to law. Finally, in the alternative,
Merchants argued that the compensatory damages and the
punitive damages should be remitted as excessive under common
law and on statutory and constitutional grounds. On the same
date, Merchants filed a "Motion to Conduct
Hammond/Green Oil Hearing and to Remit
Damages." In that motion, Merchants contended that
"the present punitive damages verdict is greater than
any of the net punitive awards" affirmed in
retaliatory-discharge cases in the past 20 years.
September 5, 2017, Merchants filed an amended postjudgment
motion in which it withdrew its argument "seeking
judgment as a matter of law as to [Rice's] retaliatory
discharge claim as a whole." Merchants repeated all the
other arguments it had related in its original postjudgment
September 22, 2017, the trial court held a hearing on
Merchants' postjudgment motion and its motion seeking
remittitur of the compensatory-damages and punitive-damages
November 16, 2017, the trial court entered an order denying
Merchants' postjudgment motion and its motion to remit
the compensatory-damages award and the punitive-damages
award. The order first addressed Merchants'
arguments that the compensatory-damages award was excessive.
The trial court noted that
"[t]he verdict does not apportion or allocate between
lost back pay, lost future pay, mental anguish, and other
compensatory damages. The court cannot and will not speculate
on such apportionment. If the evidence supports the
compensatory damages award on any element of damages, or a
combination thereof, the Court must defer to the jury's
mental anguish, the trial court declined to apply a
"strict-scrutiny" standard to the evidence of
mental anguish, pursuant to Kmart Corp. v. Kyles,
723 So.2d 572, 578 (Ala. 1998), concluding that
"Rice's testimony regarding his mental anguish was
not scant within the meaning [of] Kmart." It
added that, even if such a standard was applied, "Rice
presented substantial evidence of his mental anguish."
respect to lost future earnings, the trial court observed:
"Rice testified that the circumstances under which he
was fired by Merchants monopolized his job interview with
Estes. He testified that his firing and the lawsuit created a
stigma during his job interview that led to him being hired
at a lower hourly wage. Rice testified that, but for a friend
that worked at Estes putting in a good word for him, he would
not have received a job offer from Estes."
trial court described Merchants' argument on this issue
as seeking "to reweigh the competing testimony and
exhibits, and substitute Merchants' version of the
inferences to be drawn therefrom for those of the Jury
regarding ... the amount of his lost wages and earning
capacity." Overall, the trial court concluded that
"the Jury's compensatory damages award is supported
by substantial evidence and not against the great weight and
preponderance of the evidence."
the punitive-damages award, the trial court recounted and
examined each of the applicable factors for examining such an
award expounded in BMW of North America, Inc. v.
Gore, 517 U.S. 559 (1996), Green Oil Co. v.
Hornsby, 539 So.2d 218 (Ala. 1989), and Hammond v.
City of Gadsden, 493 So.2d 1374 (Ala. 1986). Following
that examination, the trial court concluded that the
punitive-damages award was not excessive.