This case involves the interpretation of the retaliatory termination section of Alabama's Workman's Compensation Act, Ala.
On November 7, 1984, Marvin Twilley sustained an injury to his back while working for Daubert Coated Products, Inc. He filed a claim for worker's compensation benefits, and he received total temporary worker's compensation benefits until July 23, 1985. On August 29, 1985, Daubert and Sentry Insurance Company, the worker's compensation carrier, instituted this action, seeking a declaration that Twilley was "not entitled to any further or additional compensation benefits" as compensation for his injury. Twilley counterclaimed, seeking further benefits and alleging: "On or about July 15, 1985, Twilley attempted to return to work with Daubert; however, Daubert and Sentry constructively terminated Twilley's employment in retaliation for Twilley having initiated an action to recover worker's compensation benefits." He claimed he was wrongfully discharged and asked for both compensatory and punitive damages.
Upon agreement of the parties, the claims relating to worker's compensation benefits were dismissed, and the only claim upon which trial proceeded was Twilley's claim for retaliatory termination. The trial judge had previously granted Sentry's motion for summary judgment on the retaliatory discharge claim.
The case was tried before a jury, the trial commencing on June 9, 1987.
At the trial, Twilley presented evidence that he claimed showed that he was willing and able to return to work on July 15, 1985, and that Daubert "constructively terminated" him by refusing to allow him to return to work.
Daubert presented evidence that showed that Twilley was still receiving worker's compensation benefits on July 15, 1985, and that the purpose of the July 15th meeting was to discuss Twilley's return to work in light of his recent evaluation by a doctor, who had seen him at the request of the compensation carrier.
Daubert also presented evidence that showed that its policy on July 15, 1985, was that an employee could not return to work without a medical release that did not contain any restrictions, and that Twilley did not meet this criterion. Daubert also presented evidence that Twilley was treated as an employee by it after the July 15th meeting.
As can be seen, the evidence was conflicting on whether Twilley was actually "terminated," within the meaning of § 25-5-11.1. Twilley contends, of course, that he only had to show he was "constructively terminated."
The events that transpired are, to say the least, unusual. From a review of the record, it appears to us that the jury, during its deliberations, asked the Court to instruct them again on what constituted "constructive termination". They then returned a general verdict in favor of the plaintiff for $26,000, but there is a sharp dispute between the parties as to whether the trial court actually accepted this verdict.
The jury had returned to the courtroom and asked the judge to instruct them again on "constructive termination." When they retired to the jury room, the following occurred, according to the record:
"`If yes, was that termination solely because the plaintiff instituted or maintained an action against his employer to recover worker's compensation benefits?'
"JUROR SMITH: The verdict of Twilley against Daubert Coated.
"`We, the jury, find for the plaintiff against the defendant and assess the
Twilley filed a motion to strike the interrogatories that the trial judge had propounded to the jury, and the trial court granted his motion, and entered the following order:
Our standard of review of a JNOV is well settled. A motion for JNOV should be denied if there is any conflict in the evidence for the jury to resolve, and the existence of such a conflict is to be determined by the scintilla rule. Handley v. City of Birmingham, 475 So.2d 1185, 1186 (Ala.1985); Elrod v. Ford, 489 So.2d 534, 537 (Ala.1986). On review of a JNOV, the evidence must be viewed in a light most favorable to the nonmoving party. Wadsworth v. Yancey Bros. Co., 423 So.2d 1343, 1345 (Ala.1983).
The trial judge by granting JNOV, held that, as a matter of law, there was not a scintilla of evidence to support Twilley's contention that his worker's compensation claim was the sole reason for his termination as required by the statute. The effect of this ruling was a holding was that there was no conflict in the evidence for the jury to resolve.
Viewing the evidence in a light most favorable to Twilley, we find at least a scintilla of evidence that Twilley's filing of a worker's compensation claim was the sole cause of his termination. Like the trial judge, we could not consider the jury's answer to the interrogatories in making this determination.
Our determination that the trial judge erred in granting the JNOV is based upon our interpretation of what the legislature intended when it authorized an employee to sue for his or her wrongful termination.
When this Court did not carve out a public policy exception to the "employment at will" doctrine in Meeks v. Opp Cotton Mills, 459 So.2d 814 (Ala.1984), the legislature passed what is carried in the Code as § 25-5-11.1. Because this was remedial legislation, intended to prevent an employee's termination "solely because the employee [had] instituted or maintained [an] action against the employer to recover worker's compensation benefits," we apply the rule that the statute is to be construed liberally to effect its purposes, Ex parte Wright, 443 So.2d 40 (Ala.1983).
In construing the retaliatory discharge statute, we must determine what
The legislature's use of the word "solely," however, presents a more difficult question. While we cannot accept Twilley's argument that his burden of proof "should be determined in accordance with the general law of torts utilizing proximate cause analysis to fashion a simple `but for' test for the jury to determine the `sole' cause of a plaintiff's termination," we do not believe that the legislature intended that an employer is entitled to a directed verdict if the employer presents any evidence that the termination was not because of the employee's instituting or maintaining an action to recover worker's compensation benefits.
Twilley cites several cases in his brief that involve wrongful termination as a result of filing a worker's compensation claim. They are: Wiedower v. ACF Industries, Inc., 715 S.W.2d 303 (Mo.App.1986); Smith v. Piezo Technology & Professional Administrators, 427 So.2d 182 (Fla.1983); Clifford v. Cactus Drilling Corp., 109 Mich.App. 776, 312 N.W.2d 380 (1981) rev'd, 419 Mich. 356, 353 N.W.2d 469 (1984); Judson Steel Corp. v. Worker's Compensation Appeals Board, 22 Cal.3d 658, 150 Cal.Rptr. 250, 586 P.2d 564 (1978); and Santex, Inc. v. Cunningham, 618 S.W.2d 557 (Tex.Civ.App.1981).
We agree with Daubert that these cases are distinguishable.
In Wiedower, the wrongful termination statute did not contain the word "solely"; rather, it required only that the employee be terminated "as a direct result" of filing a worker's compensation claim. 715 S.W.2d at 305.
In Piezo Technology, the Florida statute did not require that the termination be "solely" for filing a worker's compensation claim. Rather, the statute broadly prohibited the discharge or intimidation of an employee "by reason of such employee's valid claim for compensation." 427 So.2d at 183.
The Clifford decision did not involve a statutory wrongful termination claim; rather, the court found that it was a violation of public policy to allow the termination of an employee because of absences resulting from a work-related injury.
The statute in Judson Steel also did not contain the word "solely." The California statute broadly prohibited any discrimination against an employee who was injured in the course and scope of his employment. 22 Cal.3d at 661, 150 Cal.Rptr. at 251, 586 P.2d at 565.
Finally, the Santex case involved the wrongful termination of an employee for filing a worker's compensation case. The employer requested a special interrogatory or a charge stating that it would be liable only if the jury found that the employee was discharged "solely" for filing a worker's compensation case.
The Texas statute prohibited the discharge of, or discrimination against, any employee because the employee had filed a worker's compensation case in good faith. The court rejected the employer's requested instruction, stating:
Id., 618 S.W.2d at 559.
The Santex case graphically shows why this Court should not accept the interpretation of the word "solely" that Daubert advances. In order to ascertain what the legislature did intend, we have reviewed cases construing the word "solely" in a remedial statute, which we consider is similar. The Rehabilitation Act of 1973 prohibits discrimination against a person "solely by reason of his handicap."
The United States Court of Appeals for the Second Circuit described a plaintiff's burden of proof under that Act, as follows:
Doe v. New York University, 666 F.2d 761, 776 (2d Cir.1981).
The Tenth Circuit Court of Appeals describes a plaintiff's burden as follows:
Pushkin v. Regents of the University of Colorado, 658 F.2d 1372, 1387 (10th Cir. 1981).
We hold that an employee may establish a prima facie case of retaliatory discharge by proving that he was "terminated" because he sought to recover worker's compensation benefits, which would be an impermissible reason. The burden would then shift to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the plaintiff must prove that the reason was not true but a pretext for an otherwise impermissible termination.
We are mindful that the jury, in this case, did find, by answer to the special interrogatory, that Twilley was not terminated "solely" because he sought to recover worker's compensation benefits, but the trial judge affirmatively stated that he did not consider that answer in granting the judgment notwithstanding the verdict.
Daubert contends on its cross-appeal that Twilley's claim does not fall under the wrongful termination statute because § 25-5-11.1 did not become effective until February 1, 1985. Twilley's injury occurred on November 7, 1984, and Daubert contends that this is the date that should control for determining when Twilley's cause of action arose under § 25-5-11.1. Section 14 of Act 85-41, 1984-85 Ala. Acts (Second Special Session, 1984-85), states:
The act became law on January 9, 1985, and, thus, that is its effective date.
The last sentence of the effective date provision obviously refers to claims for workman's compensation benefits. The major thrusts of the act are to change co-employee liability and to change workman's compensation benefits. Thus, the two different "effective date" provisions of § 14 can be reconciled by inferring that the act does not change benefits with respect to workplace injuries occurring prior to its effective date of January 9, 1985, and that it does not affect any cause of action arising or accruing prior to February 1, 1985, such as a co-employee action or an attempted wrongful termination action. Twilley's cause of action for wrongful termination accrued on July 15, 1985, the date he alleges that he was wrongfully terminated. Even though he was injured before February 1, 1985, he had no cause of action until he was allegedly wrongfully terminated, which was after February 1, 1985. Consequently, his action did not "accrue" prior to the effective date of the act.
The other issues Daubert raises on its cross-appeal either have been addressed by our discussion of Twilley's appeal or may not arise on a retrial of this case, and thus, need not be reached here. The trial court's judgment, insofar as it relates to Daubert's cross-appeal, is affirmed.
In view of the foregoing, and the state of this record, we hold that the trial judge erred in granting a judgment for the defendant Daubert notwithstanding the verdict, and we reverse and remand the cause to the trial court, with instructions to grant the plaintiff a new trial.
86-1503 REVERSED AND REMANDED, WITH INSTRUCTIONS.
JONES, ALMON, ADAMS, HOUSTON and STEAGALL, JJ., concur.
ON APPLICATION FOR REHEARING
In his application for rehearing, Twilley asked this Court to order the trial court to reinstate the jury's verdict of $26,000.00 instead of remanding for a new trial. He points out that neither he nor Daubert ever requested a new trial in the court below. However, in view of the state of this record, as we pointed out on original deliverance, and the fact that the jury's verdict, in view of their answer to the special interrogatories, is tainted, we believe that justice demands that a new trial be ordered. See Gordon v. Halstead, 283 Ala. 578, 219 So.2d 629 (1969); Ala.Code 1975, § 12-22-70; Rule 1, A.R.A.P.
Daubert also states that we did not address its contention that Twilley is not entitled to a jury trial on remand. We did not. We now address it. This Court has said:
Cumens v. Garrett, 294 Ala. 535, 536, 319 So.2d 665 (1975).
Twilley's cause of action under the wrongful termination statute is a tort action. See Caraway v. Franklin Ferguson Mfg. Co., 507 So.2d 925 (Ala.1987). Thus, an action for wrongful termination is "of a sort" that has traditionally been tried to a jury, even though it may have arisen out of a workman's compensation factual setting.
OPINION EXTENDED. APPLICATIONS OVERRULED.