As he describes it, Ray Keith Wood pulled a muscle loose in his left forearm while working as a machinist for Black Creek, Inc., in February 2000. Black Creek's workers' compensation insurance carrier authorized surgery on Wood's forearm. The surgery was performed on May 5, 2000. Wood returned to work on June 12, 2000, having been released by his surgeon to do only right-handed work; his left arm was in a brace.
During his first week back at work, Wood had three physical-therapy appointments. His time card indicated that he worked his full shift on June 12 before leaving for his appointment but that he left work an hour and a half early on June 15 and June 16 to go to physical therapy. Melanie Tullis, Black Creek's human-resources manager, wrote up a disciplinary warning, citing Wood's alleged failure to follow Black Creek's policy that required employees to attempt to schedule their medical appointments at the beginning of, near the end of, or after their shifts. The disciplinary warning also warned that Wood was required to notify Tullis or his supervisor if he had to leave early to attend a medical appointment. This disciplinary warning was never given to Wood.
On June 19, 2000, Wood complained to his doctor that his light-duty job was causing pain in his right arm. The doctor gave Wood a written excuse for missing work on June 19, requesting in it that Black Creek "ease up" on the work being assigned to Wood. Tullis testified that Wood had told his supervisor that he would telephone her after his appointment on June 19 if he would not be returning to work that day. When Wood did not return to work or telephone his supervisor, Tullis wrote up a second disciplinary warning. This second warning, like the first, was never given to Wood.
On June 20, 2000, Wood arrived at work shortly before 7:00 a.m. for his scheduled shift. He testified that he was in a lot of pain and that the pain limited his use of both arms. Wood testified that he went to the front office and spoke to Daryl Weaver, Black Creek's president. Wood said that he told Weaver that both his arms hurt and that he needed to see the doctor again. According to Wood, Weaver told him to "do what you gotta do" and to tell Tullis.
Both Wood and Tullis testified that Wood was agitated by Tullis's response. Tullis testified that, as she walked away, she heard Wood say something. Two other Black Creek employees, DeLynn Minshew and Byron Pledger, testified that they overheard Wood say: "She can just kiss my ass." Wood admitted making the comment, but he testified that he "muttered [it] under his breath" after Tullis had walked away and that the remark was not directed at anyone. Minshew testified that Wood made the comment as he was "going out [of the office] into the shop" and as Tullis was walking down the hallway.
Wood testified that, after leaving the front office, he clocked out at 8:00 a.m. to go to the doctor.
Tullis testified that, sometime during the morning of June 20, she learned of the statements Wood had allegedly made and she learned that Wood had left work early. She notified Tommy Marshall, the plant manager, that Wood had left early. Marshall testified that he asked Tullis and Wood's supervisor whether Wood had received permission to leave work. Tullis testified that Wood had not asked her for permission to leave nor informed her that he needed to return to the doctor. Dorothy Willingham, Wood's supervisor, also testified that Wood had not asked her for permission to leave work.
Marshall testified that he did not hear Wood make the allegedly inappropriate comments regarding Tullis but that he had received and reviewed written statements from Tullis, Minshew, Pledger, and Robertson. Marshall testified that Wood's decision to leave work early on June 20 without permission and his comments regarding Tullis, considered together, formed the basis of Marshall's decision to terminate Wood's employment. On June 20, Marshall spoke to Wood by telephone and informed him that his employment with Black Creek had been terminated because he had left work early that day without permission.
In August 2000, Wood sued Black Creek, seeking worker's compensation benefits and alleging that Black Creek had discharged him in retaliation for his filing a worker's compensation claim. See § 25-5-11.1, Ala.Code 1975 ("No employee shall
At the close of Wood's evidence, and again at the close of all the evidence, Black Creek filed what it styled as a motion to dismiss or, in the alternative, a motion for a judgment as a matter of law ("JML").
On July 31, 2009, the Court of Civil Appeals issued a plurality opinion, in which the court reversed the trial court's judgment. Wood applied for a rehearing. On March 12, 2010, the Court of Civil Appeals overruled Wood's application for a rehearing but withdrew its original opinion and substituted a new one, also a plurality decision. In the new opinion, the Court of Civil Appeals reversed the decision of the trial court and remanded the case with instructions for the trial court to enter a judgment in Black Creek's favor. Wood, 69 So.3d at 165-66.
Wood petitioned this Court for certiorari review of the Court of Civil Appeals' judgment. He argued, pursuant to Rule 39(a)(1)(D), Ala. R.App. P., that the Court of Civil Appeals' decision conflicts with prior caselaw from this Court. This Court granted certiorari review to address the alleged conflicts. We reverse and remand.
In Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala.2002), this Court stated:
Once a plaintiff establishes a prima facie case of retaliatory discharge, "`[t]he burden... then shift[s] to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the employee must prove that the reason given by the employer was not true but a pretext for an otherwise impermissible termination.'" Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1122 (Ala.1992) (quoting Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364, 1369 (Ala.1988)).
Aldridge, 854 So.2d at 568.
Black Creek has argued that Wood's employment was terminated because (1) he voluntarily quit on June 20 by leaving work early without permission, and (2) his statements regarding Tullis—that he would "slap that bitch" and that "[s]he can kiss my ass"—violated company policies against the use of inappropriate language and threatening or insubordinate behavior.
Wood, 69 So.3d at 164. Thus, the opinion "conclude[d] that Black Creek ha[d] presented undisputed evidence of a legitimate reason for Wood's discharge—that he used foul and inappropriate language in reference to a supervisory or managerial employee." 69 So.3d at 165. The opinion reasoned that "[b]ecause Black Creek's advanced reason is legitimate, Wood failed to present substantial evidence indicating that he was discharged solely for filing a workers' compensation claim, as he was required to do to recover under Ala.Code 1975, § 25-5-11.1." 69 So.3d at 165.
Wood has admitted that he made the remark that Tullis could "kiss [his] ass." For the purposes of our analysis in this case, we will assume that such language is "inappropriate to the workplace" as that phrase is used in Black Creek's employee handbook and, thus, can provide "evidence that [Wood] was terminated for a legitimate reason." Culbreth, 599 So.2d at 1122. We must now consider whether
In this regard, Wood argued in his petition for certiorari review that the Court of Civil Appeals' decision conflicts with Culbreth. In Culbreth, Ivy Culbreth filed a worker's compensation claim after suffering an on-the-job injury that kept him away from work for approximately two weeks. Culbreth testified:
Culbreth, 599 So.2d at 1122.
This Court concluded that "a jury question is presented as to whether Woodham Plumbing's asserted reason [was] a legitimate one or only a pretext." Culbreth, 599 So.2d at 1123. We stated:
Wood testified that, when Marshall telephoned him on June 20 to inform him that his employment had been terminated, Marshall stated that the reason for his termination was that Wood had left work early that day without permission. According to Wood, no mention was made of any allegedly inappropriate comment Wood made regarding Tullis.
Tullis testified repeatedly that Wood was not terminated or discharged for the use of foul or inappropriate language or for any other reason.
Moreover, Marshall testified that, in deciding whether to terminate Wood's employment, he reviewed the statements of the other Black Creek employees regarding Wood's allegedly inappropriate comments.
Flint Constr. Co., 904 So.2d at 252.
The decision of the Court of Civil Appeals conflicts with prior caselaw, and its judgment is due to be reversed. However, as Black Creek points out, if the Court of Civil Appeals' decision is reversed, "there are several issues regarding the calculation of damages and award of mental anguish which [were] pretermitted by the Court of Civil Appeals which are due to be considered." Black Creek's brief, at 46. Therefore, we must remand the case to the Court of Civil Appeals for consideration of those issues.
The Court of Civil Appeals erred in reversing the trial court's judgment and instructing the trial court to enter a judgment in Black Creek's favor. Therefore, we reverse the Court of Civil Appeals' judgment and remand the case to that court for further proceedings consistent with this opinion.
REVERSED AND REMANDED.
COBB, C.J., and LYONS, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.