Termination of Employment Who Left Work Because of Back Pain
Under Alabama law, an employment contract is terminable at will by either party -- for a good reason, a wrong reason, or no reason at all. Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120 (Ala. 1992).
Because of this rule, which dates back to Howard v. East Tennessee V. & G. Ry., 91 Ala. 268, 8 So. 868 (1891), this Court refused to recognize a common-law remedy for a retaliatory discharge occurring as a result of an employee's filing a claim for workers' compensation benefits. Meeks v. Opp Cotton Mills, Inc., 459 So. 2d 814 (Ala. 1984).
In order to ameliorate the effect of the employment-at-will doctrine in the context of an employee discharged for filing a claim for workers' compensation benefits, the Legislature in 1984 enacted 25-5-11.1, Ala. Code 1975.
Section 25-5-11.1 states that "no employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits." See Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala. 1988).
In Johnson v. Cargill, Inc., 984 S.W.2d 233 (Tenn. App. 1998), the Tennessee Court of Appeals, in a retaliatory-discharge action, considered the relevance of an employee's physical condition; that court used the employee's disability as the basis for reversing a judgment for the employee.
In applying Tennessee's common-law cause of action for a retaliatory discharge based on the employee's filing a workers' compensation claim, the court stated:
"The elements of such a claim are:
(1) the plaintiff was an employee of the defendant at the time of the injury;
(2) the plaintiff made a claim against the defendant for workers' compensation benefits;
(3) the defendant terminated the plaintiff's employment;
(4) the claim for workers' compensation benefits was a substantial factor in the employer's motivation to terminate the employee's employment. the plaintiff bears the burden of proof on these elements, 'including a causal relationship between the claim for workers' compensation benefits and the termination of employment.' If the plaintiff makes a prima facie case of retaliation, the defendant bears the burden 'of proving a legitimate nonpretextual nonretaliatory reason for the discharge.' This reason may involve the employee's shortcomings, such as 'unexplained tardiness, excessive absenteeism, lying as to previous compensation claims, or physical inability to do the job.'" 984 S.W.2d at 234 (quoting Anderson v. Standard Register Co., 857 S.W.2d 555, 558-59 (Tenn. 1993)).
In Johnson v. Cargill, the employee sought to overcome the evidence of his disability by showing a discriminatory refusal to make him eligible for a "light-duty" policy under which injured employees were either given lighter duties or were helped with their usual duties until they could return to their regular work.
However, the court reviewed the evidence regarding the treatment other employees had received and concluded that it did not substantiate the employee's claim of discrimination.
In Elzey v. Forrest, 739 P.2d 999 (Okla. 1987), the Oklahoma Supreme Court, interpreting a statute creating a remedy for retaliatory discharge, reached a similar conclusion regarding how to deal with the employee's inability to perform. 5 In dealing with the same issue here presented, the Oklahoma court stated:
5 85 O.S. 1981 5 provided as follows:
"No person, firm, partnership or corporation may discharge any employee because the employee has in good faith filed a claim, or has retained a lawyer to represent him in said claim, instituted or caused to be instituted, in good faith, any proceeding under the provisions of Title 85 of the Oklahoma Statutes, or has testified or is about to testify in any such proceeding. Provided no employer shall be required to rehire or retain any employee who is determined physically unable to perform his assigned duties."(As quoted in Elzey, 739 P.2d at 1001.)
"We do not accept the premise inherent in appellee's argument that proof of physical ability must be a part of a plaintiff's prima facie case in a retaliatory discharge action. the premise entailed is that a discharge of one physically unable to perform his job duties is protected from the application of the retaliatory discharge provisions even though it might be established that a significant motivating factor behind the discharge of a temporarily disabled employee was the employee's filing for worker's compensation benefits.
We find that, to give full effect to the Legislature's intent to protect employees who seek the benefits conferred under Oklahoma's Workers' Compensation Act, once a plaintiff in a retaliatory discharge action has presented evidence establishing that a significant factor in his termination was retaliation for one or more of the activities expressly protected under 85 O.S. 1981 5, a prima facie case of retaliatory discharge has been established.
The burden then shifts to the employer to establish that the discharge was for a legitimate reason. the employer may then offer proof that the primary motivation for discharging the employee was the employee's inability to perform his assigned duties or that the employee had pursued a worker's compensation claim in bad faith." 739 P.2d at 1002-03.
The Oklahoma court thus rejected the argument that proof of physical ability is a part of the employee's prima facie case, notwithstanding that the Oklahoma statute expressly protected the employer's right to refuse to rehire or retain any employee who was physically unable to perform his assigned duties.
In Cardwell v. American Linen Supply, 843 P.2d 596 (Wyo. 1992), the Supreme Court of Wyoming affirmed a summary judgment for the employer in a retaliatory-discharge action.
The employer, after having attempted for over a year to accommodate the employee's medical problems, discharged the employee because she was no longer physically able to perform her job. the court stated:
"'There is a distinction between a termination for the exercise by the worker of his rights under the worker's compensation law and a termination for inability to do the work, even if such inability is caused by an accident requiring the exercise of worker's compensation rights. the disability and partial disability benefits of the worker's compensation law are in recognition of this distinction.'"
843 P.2d at 599 (quoting Lankford v. True Ranches, Inc., 822 P.2d 868, 872 (Wyo. 1991)). Then, in an effort to flesh out the elements of Wyoming's common-law cause of action for retaliatory discharge, the Wyoming court adopted a discussion of the order and burdens of proof established by the Oklahoma Supreme Court in its retaliatory-discharge cases:
"'The discharged employee must show employment, on the job injury, receipt of treatment under circumstances which put the employer on notice that treatment had been rendered for a work-related injury, or that the employee in good faith instituted, or caused to be instituted, proceedings under the Wyoming Worker's Compensation Act, and consequent termination of employment. After a prima facie case is established, the burden then appropriately shifts to the employer to rebut the inference that its motives were retaliatory by articulating that the discharge was for a legitimate non-retaliatory reason.... Two of these reasons include the employee's inability to perform the assigned duties, or the bad faith pursuit of a compensation claim. ...
"'... Placing this burden of production on the employer serves two purposes--it meets the plaintiff's prima facie case by presenting a legitimate reason for the action, and it frames the factual issue with sufficient clarity to provide the worker with a full and fair opportunity to demonstrate that the reason offered by the employer for terminating the employee was not the true reason for the employment decision but was, rather, a pretext.'"
843 P.2d at 599-600 (ellipses and interpolation in Cardwell) (quoting Buckner v. General Motors Corp., 760 P.2d 803, 806-07 (Okla. 1988)).