author: WOODALL, Justice. JOHNSTONE, Justice WOODALL, Justice. JOHNSTONE, Justice MOORE, Chief Justice

text:
    Donald L. JOHNSON and Florence Radiology Associates, P.C. v. Janet STEWART and Donald Stewart.
    1011114.
    Supreme Court of Alabama.
    Oct. 18, 2002.
    Opinion on Denial of Rehearing Feb. 28, 2003.

      Matthew H. Lembke and Scott Burnett Smith of Bradley Arant Rose & White, LLP, Birmingham; and Gary C. Huckaby and Kenneth B. Cole of Bradley Arant Rose & White, LLP, Huntsville, for appellants.
    Frank B. Potts and Debra H. Coble of Potts & Young, L.L.P., Florence, for ap-pellees.
   WOODALL, Justice.

A jury found in favor of Donald Stewart (“Dr. Stewart”) and his wife Janet Stewart on their invasion-of-privacy claims, awarding each nominal damages of $1.00 and punitive damages of $1 million against the defendants Donald L. Johnson and Florence Radiology Associates, P.C. (hereinafter referred to collectively as “Dr. Johnson”). Dr. Johnson filed a postjudgment motion seeking, alternatively, a judgment as a matter of law, a new trial, or a remittitur of the punitive-damages awards. The trial court denied the motion insofar as it sought a judgment as a matter of law or a new trial. However, the trial court ordered Dr. Stewart to accept a remittitur of the punitive damages from $1 million to $500,000, and ordered Janet Stewart to accept a remittitur of the punitive damages from $1 million to $350,000, or else it would order a new trial. The Stewarts accepted the remittiturs.

Dr. Johnson appeals, contending that he was entitled to a judgment as a matter of law on the Stewarts’ invasion-of-privacy claims. We reverse and remand.

I.

Dr. Johnson argues that the trial court erred in denying his motion for a judgment as a matter of law (“JML”) on the Stewarts’ invasion-of-privacy claims. Well-established principles govern our review of a motion for a JML:

“[T]he Court uses the same standard the trial court used initially in granting or denying a JML. Palm Harbor Homes, Inc. v. Crawford, 689 So.2d 3 (Ala.1997). Regarding questions of fact, the ultimate question is whether the nonmovant has presented sufficient evidence to allow the case or the issue to be submitted to the jury for a factual resolution. Carter v. Henderson, 598 So.2d 1350 (Ala.1992). For actions filed after June 11, 1987, the nonmovant must present ‘substantial evidence’ in order to withstand a motion for a JML. See § 12-21-12, Ala.Code 1975; West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989). A reviewing court must determine whether the party who bears the burden of proof has produced substantial evidence creating a factual dispute requiring resolution by the jury. Carter, 598 So.2d at 1353. In reviewing a ruling on a motion for a JML, this Court views the evidence in the light most favorable to the nonmovant and entertains such reasonable inferences as the jury would have been free to draw. Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996). Regarding a question of law, however, this Court indulges no presumption of correctness as to the trial court’s ruling. Ricwil, Inc. v. S.L. Pappas & Co., 599 So.2d 1126 (Ala.1992).”

Delchamps, Inc. v. Bryant, 738 So.2d 824, 830-31 (Ala.1999). We must apply these principles in reviewing the trial court’s ruling on Dr. Johnson’s motion for a JML.

II.

Dr. Stewart and Dr. Johnson are radiologists, who became partners in 1991. In January 1995, Dr. Johnson hired Surveillance Technologies, Inc. (“STI”), to investigate Dr. Stewart after Dr. Johnson became concerned about Dr. Stewart’s behavior.

The investigation continued for approximately two and one-half years. The Stew-arts did not learn of STI’s investigation until August 1997, when an employee of STI sold Dr. Stewart what purported to be a copy of STI’s investigative file in exchange for a $10,000 loan. On October 28, 1997, the Stewarts sued Dr. Johnson, stating invasion-of-privacy claims, as well as other claims, against him.

The case was tried before a jury. Dr. Stewart’s copy of what was purported to be STI’s investigative file was not received into evidence. However, Charles Frederick, the owner of STI and one of its investigators, did testify concerning the scope and manner of the investigation. Dr. Johnson moved for a JML on the invasion-of-privacy claims, both at the close of the Stewarts’ case and at the close of all the evidence, and the trial court denied the motions. As previously mentioned, the jury returned verdicts on the Stewarts’ invasion-of-privacy claims, awarding nominal and punitive damages, but it awarded no compensatory damages to either plaintiff. Dr. Johnson appeals, contending that he was entitled to a JML on the invasion-of-privacy claims.

III.

The parties agree that the threshold issue on appeal is whether the Stewarts presented substantial evidence indicating that Dr. Johnson violated the wrongful-intrusion branch of the invasion-of-privacy tort. This Court has defined the scope of that tort:

“In Phillips v. Smalley Maintenance Services, Inc. 435 So.2d 705 (Ala.1983), this Court adopted the Restatement (Second) of Torts definition of the wrongful-intrusion branch of the invasion-of-privacy tort:
“ ‘One who intentionally intrudes, physically or otherwise, upon the solitude or seclusion of another or his private affairs or concerns, is subject to liability to the other for invasion of his privacy, if the intrusion would be highly offensive to a reasonable person.’
“Restatement (Second) of Torts, § 652B (1977). Comment c to § 652B states in part: ‘The defendant is subject to liability under the rule stated in this Section only when he has intruded into a private place, or has otherwise invaded a private seclusion that the plaintiff has thrown about his person or affairs.’ The wrongful intrusion may be by physical intrusion into a place where the plaintiff has secluded himself, by discovering the plaintiffs private affairs through wiretapping or eavesdropping, or by some investigation into the plaintiffs private concerns, such as opening private mail or examining a private bank account. Restatement (Second) of Torts § 652B cmt. b; see Vernars v. Young, 539 F.2d 966 (3d Cir.1976) (holding that invasion of privacy occurred when mail addressed to plaintiff was opened by defendant without plaintiffs consent); see generally, W. Page Keeton, et al., Prosser and Keeton on the Law of Torts, § 117, at 854-55 (5th ed.1984); 62 Am.Jur.2d Privacy §§ 51-57 (1990). Further, if the means of gathering the information are excessively objectionable and improper, a wrongful intrusion may occur. See Hogin v. Cottingham, 533 So.2d 525 (Ala.1988) (wrongful intrusion occurs when there has been abrupt, offensive, and objectionable prying into information that is entitled to be private).”

Johnston v. Fuller, 706 So.2d 700, 702 (Ala.1997). “This Court [has been] unwilling ‘to create a broad privacy action, with no metes and bounds, that would extend beyond [one’s] dwelling, papers, and private records, creating unknown dangers to unsuspecting routine inquirers.’ ” Myrick v. Barron, 820 So.2d 81, 87 (Ala.2001), quoting Johnston v. Fuller, 706 So.2d at 703.

“[A] wrongful intrusion may be by physical intrusion into a place where the plaintiff has secluded himself,” including, of course, the plaintiffs home. Johnston v. Fuller, 706 So.2d at 702. Here, the Stewarts allege that the investigation instigated by Dr. Johnson “invaded the privacy and emotional sanctity of the Stewarts by trespassing on their property.” Stewarts’ Brief, at 1. However, they do not cite any part of the record in support of that contention. Our independent review of the record reveals that Charles Frederick testified that “it was impossible to set up a surveillance on their residence.”

The Stewarts also contend that the investigators “invaded [their] privacy and emotional sanctity ... by ... calling them on the telephone repeatedly using false pretenses.” Stewarts’ Brief, at 1. More particularly, they accuse the investigators of “calling them using false pretenses at all hours of the night and day.” Stewarts’ Brief, at 32. However, again, the Stewarts fail to cite any part of the record that supports their contention. Instead, the only citation to a part of the record dealing with telephone calls is a citation to Charles Frederick’s testimony. When he was asked whether he ever telephoned the Stewart residence, he answered: “I don’t recall. It’s possible. Doing what’s called a pretex[t] ... [j]ust to determine if they are at home.” Obviously, Frederick’s testimony does not provide substantial evidence of any wrongful intrusion.

Next, the Stewarts contend that the investigators “invaded [their] privacy and emotional sanctity ... by ... following them everywhere they went.” Stew-arts’ Brief, at 1. In their words, “[t]hey were tailed and surveilled.” Stewarts’ Brief, at 41. However, once again, the Stewarts cite no part of the record that supports their contention that any surveillance was improperly intrusive upon their “solitude or seclusion” or upon their “private affairs or concerns.” Indeed, their citations to the record take us only to testimony indicating that surveillance began at the entrance to the subdivision where they lived. However, generally, the observation of another person’s activities, when that other person is exposed to the public view, is not actionable under the wrongful-intrusion branch of the invasion-of-privacy tort. See I.C.U. Investigations, Inc. v. Jones, 780 So.2d 685 (Ala.2000). It is true “that the ‘wrongful intrusion’ privacy violation can occur in a public place, when the matter intruded upon is of a sufficiently personal nature.” Phillips v. Smalley Maint. Servs., Inc., 435 So.2d 705, 711 (Ala.1983). However, the Stewarts offered no evidence indicating that the investigation by STI intruded upon any such personal matter.

The Stewarts argue that Dr. Johnson committed an actionable tort when he “provided private and personal information about [them] to a private investigator.” Stewarts’ Brief, at 8. Specifically, the Stewarts allege that “Johnson gave the investigators [their] names, addresses, telephone numbers, [S]ocial [S]ecurity numbers, vehicles and tag numbers, [and] copies of [their] checks.” Stewarts’ Brief, at 4. However, the Stewarts did not offer substantial evidence in support of those contentions.

Obviously, there can be “ ‘no privacy in that which is already public.’ ” Abernathy v. Thornton, 263 Ala. 496, 498, 83 So.2d 235, 237 (1955) (quoting Hepburn, Cases on Torts, p. 504). Therefore, public information, such as a person’s name, address, and telephone number, or the make and model of the vehicle he drives and its license plate number, cannot form the basis for an invasion-of-privacy claim. While it can be argued that a person has a privacy interest in his or her credit-card account numbers, the Stewarts cite no parts of the record supporting their contention that Dr. Johnson gave the investigators any credit-card account number belonging to the Stewarts. In fact, Dr. Johnson denied giving any credit-card account number to STI, and Charles Frederick simply did not recall whether Dr. Johnson had given him any credit-card account number.

While the Stewarts allege that Dr. Johnson gave the investigator copies of their personal checks, Charles Frederick testified only that “[i]t seems like” he was given copies of their checks. That testimony is indicative of nothing more than a mere possibility, which does not constitute substantial evidence that copies of the Stewarts’ personal checks were provided to him by Dr. Johnson. Also, we note that the Stewarts do not argue that the information printed on the checks is private.

Dr. Johnson admits that he provided the Stewarts’ Social Security numbers to the investigator. As stated by the Stewarts, “Johnson obtained their [S]ocial [Security numbers somehow and did give them to the investigator.” Stewarts’ Brief, at 33 (emphasis added). However, for all that appears in the record, the Stewarts voluntarily furnished their Social Security numbers to Dr. Johnson, or voluntarily furnished the information to other persons,' who then provided Dr. Johnson with the numbers. A wrongful-intrusion claim cannot be based upon information voluntarily given to the defendant by the plaintiffs or upon the defendant’s receipt of information already known to others. See Myrick v. Barron, supra, and Johnston v. Fuller, supra.

Finally, the Stewarts contend that Dr. Johnson invaded their privacy when he had STI perform “asset checks [on them], inelud[ing] private, personal banking information, stock information and property information.”’ Stewarts’ Brief, at 5. Specifically, they contend that “[i]t is totally undisputed that the investigators did procure and produce to Johnson the personal and private banking account information on Donald Stewart and Janet Stewart. This is the private information that is actionable.” Stewarts’ Brief, at 32. It is clear that “[a] wrongful intrusion may be by ... some investigation into the plaintiffs private concerns, such as ... examining a private bank account.” Johnston v. Fuller, 706 So.2d at 702. Therefore, we must determine whether the Stewarts offered substantial evidence of an examination of their “private, personal banking information, stock information [or] property information.”

As previously discussed, STI’s investigative reports were not received into evidence. The only testimony concerning the scope of the investigation into the Stewarts’ assets was the testimony of Charles Frederick, who testified: “A basic asset check could just be property, vehicles, things like that. A full-blown asset check ... can involve everything, bank accounts, stocks, bonds, offshore accounts.” Contrary to the Stewarts’ allegations, Frederick never testified that he obtained any information concerning any stock or other property owned by the Stewarts. While he did admit that STI had obtained some information concerning the Stewarts’ checking accounts, Frederick did not provide any description of that information or the manner in which it was obtained. It would be purely speculative to conclude that STI had examined any private bank account or that it otherwise had obtained any private financial information. For all that appears in the record, STI obtained, and provided to Dr. Johnson, only general information already known to others. Such information would not be protected by the limited scope of the wrongful-intrusion branch of the invasion-of-privacy tort. See Johnston v. Fuller, 706 So.2d at 702-03.

IV.

For the foregoing reasons, we conclude that the Stewarts did not offer substantial evidence in support of their invasion-of-privacy claims against Dr. Johnson. Therefore, the trial court erred in denying Dr. Johnson’s motion for a JML. The judgment of the trial court is reversed, and the case is remanded for the entry of an order consistent with this opinion.

REVERSED AND REMANDED.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, and STUART, JJ., concur.

MOORE, C.J., and JOHNSTONE, J., dissent.

JOHNSTONE, Justice

(dissenting).

I respectfully dissent. In my opinion the record contains substantial evidence that Dr. Johnson invaded the Stewarts’ privacy at least by wrongfully obtaining and disclosing their checks. While the evidence is not clear and convincing, it is sufficient to support the nominal damage award of one dollar for each plaintiff.

Although Dr. Johnson denies providing the checks to the investigator, Dr. Johnson admits providing the investigator the rest of the information to start the investigation. In addition, the investigator testified:

“Q. Were you at any time given copies of checks, personal checks out of the checking accounts that belonged to Janet Stewart or Donald Stewart?
“A. It seems like it. I’m not sure.
“Q. Do you know — same question. Do you know if you were given similar-type checks on M.B. or S.B.?
“A. It seems like it. I’d have to go back and look.
“Q. If you were given those checks who would have given those checks to you?
“A. It would have been Dr. Johnson.”

Substantial evidence is defined as “evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assur. Co. of Florida, 547 So.2d 870, 871 (Ala.1989) (citation omitted). This evidence meets this test.

The account number of the drawer of a check, the name of the payee, and the amount of the check are private information for knowledge by or disclosure to only the drawer, any co-owner of the account, the drawee, any holders of the check, and persons authorized by them to assist in the delivery and negotiation of the check— certainly not for disclosure to people like the investigator in this case who are hostile to the drawer. Cf. Johnston v. Fuller, 706 So.2d 700, 702 (Ala.1997); Phillips v. Smalley Maint. Servs., Inc., 435 So.2d 705 (Ala.l983)(adopting Restatement (Second) of Torts § 652B (1977) defining and explaining invasion of privacy); and Comment b to Restatement § 652B (the wrongful invasion “may be by some other form of investigation or examination into his private concerns, as by opening his private and personal mail, searching his safe or his wallet, examining his private bank account, or compelling him by a forged court order to permit an inspection of his personal documents”). Dr. Johnson does not claim any status that would have authorized him to have obtained or to have possessed the Stewarts’ checks or to have provided such checks to the investigator, and the law does not supply any presumption or inference of any such status.

On Application for Rehearing

WOODALL, Justice.

Janet Stewart and Donald Stewart filed an application for rehearing, which we are overruling. We write solely for the purpose of responding to the Chief Justice’s statement, in his dissent, that this Court on original submission “overlooked” facts in reaching its decision.

It is fundamental that the parties have the duty to include in their briefs a statement of all facts relevant to the issues presented for this Court’s review. Indeed, Ala. R.App. P. 28 makes that duty crystal clear. Initially, the appellant’s brief must include “[a] full statement of facts relevant to the issues presented for review, with appropriate references to the record.” Rule 28(a)(7) (emphasis added). Rule 28(b) requires the appellee to conform to the requirements of subdivision (a)(7), if “the appellee is dissatisfied with [the] statements as made by the appellant.” Also, the argument of each party must contain “the contentions of the [party] with respect to the issues presented, and the reasons' therefor, with citations to the ... parts of the record relied on.” Rule 28(a)(10) (emphasis added). Where the appellee makes no correction or addition to the appellant’s statement of the facts, “[t]he statements made by appellant ... will be taken to be accurate and sufficient for decision.” Taylor v. First Nat’l Bank of Tuskaloosa, 279 Ala. 624, 628, 189 So.2d 141, 144 (1966). Obviously, “ ‘this Court is not under a duty to search the record in order to ascertain whether it contains evidence that will sustain a contention made by either party to an appeal.’ ” Brannan & Guy, P.C. v. City of Montgomery, 828 So.2d 914, 920 (Ala.2002) (quoting Totten v. Lighting & Supply, Inc., 507 So.2d 502, 503 (Ala.1987)).

As noted in this Court’s opinion on original submission, the Stewarts in their briefs made arguments addressing two issues without citing any part of the record in support of their contentions. With regard to those issues, we were entitled to assume that the Stewarts were satisfied with Dr. Johnson’s statement of the facts and to resolve the legal issues in light of those facts. With regard to the other issues, we properly considered those facts supported by appropriate references to the record, in both parties’ briefs, before reaching our decision.

In their application for rehearing, the Stewarts accuse this Court of “failing] to consider numerous facts, testimony, and evidentiary exhibits.” However, the facts the Stewarts accuse us of “failing] to consider” were only properly brought to us, for the first time, in their application for rehearing. The purpose of an application for rehearing is not to cure deficiencies in a party’s earlier brief. Indeed, an applicant for rehearing is not entitled to make new arguments based upon facts properly submitted to this Court only after its decision, because “[t]he well-settled rule of this Court precludes consideration of arguments made for the first time on rehearing.” Water Works & Sewer Bd. of the City of Selma v. Randolph, 833 So.2d 604, 608 (Ala.2002) (opinion on rehearing).

APPLICATION OVERRULED.

HOUSTON, SEE, LYONS, BROWN, HARWOOD, and STUART, JJ., concur.

JOHNSTONE, J., concurs specially.

MOORE, C.J., dissents.

JOHNSTONE, Justice

(concurring specially to overrule the application for rehearing).

While I maintain my dissent to the main opinion on original submission, I concur in overruling the application for rehearing because, in my opinion, the Justices on this Court did not, on original submission, overlook any facts we were supposed to consider, each of us did the best he or she could to apprehend and to apply the applicable law, and the application for rehearing, while diligently prepared, does not create any substantial likelihood of a change in the original judgment of this Court.

MOORE, Chief Justice

(dissenting).

I must dissent from the Court’s decision to overrule the application for rehearing in this case. On October 18, 2002, this Court reversed a judgment entered on a jury verdict in favor of Donald Stewart and Janet Stewart and against Dr. Donald Johnson because the Court concluded that “the Stewarts did not offer substantial evidence in support of their invasion-of-privacy claims against Dr. Johnson.” Johnson v. Stewart, 854 So.2d 544, 550 (Ala.2002). If the Court had before it only those facts presented in the Court’s opinion on which to base its decision, then the result in that opinion would be justified.

However, in their application for rehearing the Stewarts have pointed out several conclusions in the Court’s opinion that are contradicted by facts in the record. For instance, the Court concluded that the Stewarts did not present substantial evidence showing that Dr. Johnson “ ‘invaded the privacy and emotional sanctity of the Stewarts by trespassing on their property.’ ” 854 So.2d at 548 (quoting the Stew-arts’ brief at 1). Dr. Stewart explicitly testified, however, that he noticed “suspicious cars had been coming around our house slow.... We noticed cars parked in the back drive to start with.”

The Court’s opinion found that there was not substantial evidence indicating that investigators hired by Dr. Johnson had invaded the Stewarts’ privacy through repeated telephone calls made under false pretenses. Nevertheless, Dr. Stewart testified about repeated instances where the caller would hang up when he or Mrs. Stewart answered the telephone and other suspicious telephone calls.

The Court found that there was not substantial evidence to show that the investigators hired by Dr. Johnson had examined the Stewarts’ private banking information, their stock portfolios, and their other assets. However, Charles Frederick, the owner of, and lead investigator for, the agency that performed the investigation of the Stewarts for Dr. Johnson, testified at trial that the reason for the investigation was to see if Dr. Stewart had stolen money from the medical practice in which he and Dr. Johnson were partners. Frederick then stated that if one is looking for money that has been hidden, a “full-blown” asset check is performed, and that asset check would include investigating bank accounts, stocks, and other assets. No evidence that Dr. Stewart took money from the partnership was ever presented. Moreover, Dr. Johnson admitted in testimony that during the investigation Frederick faxed him a report containing information regarding Dr. Stewart’s bank account, although he did not elaborate on what information the report contained. On rehearing, the Stewarts point to admissions by Frederick at trial and to exhibits admitted at trial, which show that Frederick obtained information on the Stewarts’ checking accounts. The Stewarts’ rehearing application cites several other parts of the record that contain evidence indicating that the investigators invaded their privacy-

Rule 40(b), Ala. R.App. P., states that an application for rehearing “must state with particularity the points of law or the facts the applicant believes the court overlooked or misapprehended.” (Emphasis added.) The Stewarts did exactly that in their application for rehearing, citing to testimony in the record of several instances of the invasion of their privacy directly contrary to the conclusions reached by the Court in its October 18, 2002, opinion. Given that this Court should look at the evidence in a light most favorable to the Stewarts and entertain all reasonable inferences that the jury was free to draw from the evidence presented at trial, see, e.g., Motion Industries, Inc. v. Pate, 678 So.2d 724 (Ala.1996), the Court’s failure to note those facts warrants a rehearing. Indeed, this case is suitable for granting rehearing because on original submission this Court clearly disregarded facts presented by the Stewarts that went unrefuted by Dr. Johnson.

In its opinion on application for rehearing, the Court implies that the facts presented in the Stewarts’ rehearing brief are facts that have never before been brought to the attention of the Court. 854 So.2d at 552. It should be noted, however, that all of the facts the Stewarts wish the Court to reconsider on rehearing were presented in their original brief on appeal. With the exception of the Stewarts’ trespassing charge against the defendant, Dr. Johnson and Florence Radiology Associates never denied those facts; rather, they argued that those facts did not constitute enough evidence to sustain an invasion-of-privacy verdict. Instead of taking the Stewarts’ facts as true and determining whether those facts “added up” to an invasion of privacy, this Court in its October 18, 2002, opinion merely observed that the Stewarts had not cited “any part of the record,” 854 So.2d at 548, as support for those facts and maintained that there was no need to address them.

While I certainly agree that parties should make “appropriate references to the record,” Rule 28, Ala. R.App. P., when relating the relevant facts, this requirement does not negate this Court’s duty to review the record concerning relevant facts if we have doubts about the veracity of those facts; indeed, we should have no doubt when facts presented by one party are not refuted by the other party. The Court even stated in its original opinion that an “independent review of the record,” 854 So.2d at 548, had been conducted, but that independent review evidently failed to verify the facts presented by the Stewarts in their brief on original submission. While references to the record may be “appropriate,” they are not “necessary ” when the facts for which support is sought are not disputed.

In my view, the Stewarts have drawn the Court’s attention to facts overlooked in the original appeal, facts that bear directly on the Court’s holding that the Stewarts failed to present substantial evidence of an invasion of privacy. This Court should be cautious whenever it exercises its power to reverse a trial court’s judgment, and the Stewarts have provided ample reason for this Court to review its reversal of the judgement of the trial court in this case. This Court should have granted rehearing; I therefore dissent.

      . "Even in a public place, however, there may be some matters about the plaintiff, such as his underwear or láck of it, that are not exhibited to the public gaze; and there may still be invasion of privacy when there is intrusion upon these matters.” Restatement (Second) of Torts § 652B cmt. c (1977).


source: Caselaw Access Project

author: LYONS, Justice. JOHNSTONE, Justice MOORE, Chief Justice

license: Public Domain

text:
    ALABAMA POWER COMPANY v. Kevin ALDRIDGE.
    1010969.
    Supreme Court of Alabama.
    Dec. 6, 2002.
    Rehearing Denied Feb. 28, 2003.

      Gregory C. Cook, Lisa J. Sharp, and Charles A. Burkhart of Balch & Bingham, L.L.P., Birmingham, for appellant.
    Tony S. Hebson, Christy Jackson, and P. Douglas Smith, Jr., of Hebson, Liddon & Slate Southlaw, P.C., Birmingham, for appellee.
    K. Claire White of Ferguson, Frost & Dodson, L.L.P., Birmingham; and Joana S. Ellis of Hill, Hill, Carter, Franco, Cole & Black, P.C., Montgomery, for amicus curiae Alabama Defense Lawyers Association.
    Charles F. Carr and Joseph H. Driver of Carr, Allison, Pugh, Howard, Oliver & Sis-son, P.C., Birmingham, for amicus curiae Alabama Self-Insurers Association, in support of the appellant.
    I. Ripon Britton, Jr., and E. Shane Black of Hand Arendall, L.L.C., Birmingham, for amicus curiae Business Council of Alabama.
    David M. Wilson and Irene E. Blomen-kamp of Wilson & Berryhill, P.C., Birmingham, for amicus curiae Alabama General Contractors Self-Insurers Fund, Alabama Branch, in support of the appellant.
   LYONS, Justice.

Kevin Aldridge sued Alabama Power Company (“APCo”), alleging that APCo discharged him in retaliation for his filing a claim for workers’ compensation benefits. After a trial, the jury returned a $500,000 verdict in favor of Aldridge; the verdict awarded $250,000 in compensatory damages and $250,000 in punitive damages. APCo filed motions for a judgment as a matter of law (“JML”) at the close of Aldridge’s evidence, at the close of all the evidence, and again after the trial court had entered a judgment on the verdict. The trial court denied those motions. APCo appeals. We reverse and remand.

I. Factual Background

Aldridge worked for APCo from 1978 until 1998. During those years, he worked his way up from what he refers to as the “hard crew” to lead lineman. As a lead lineman, he held a supervisory position and was within the highest pay classification of the International Brotherhood of Electrical Workers, the electrical workers union. Aldridge alleged that in May 1996 he injured his neck on the job; he underwent surgery to correct this injury. As a result of that injury, Aldridge made a claim for workers’ compensation benefits, which APCo denied, and in September 1996 he sued APCo for workers’ compensation benefits. The claim for benefits remains pending before the trial court. By agreement of the parties, the resolution of the workers’ compensation action has been deferred until the conclusion of this retaliatory-discharge action.

From May 1996 to January 1997, Al-dridge did not work because of his injury and subsequent recovery from surgery. When he returned to work in January 1997, APCo placed Aldridge in its customer-service center. Aldridge left the position after three days, claiming that he experienced severe pain from sitting all day. Aldridge then applied for and received long-term disability benefits. APCo alleges that its disability management section attempted numerous times to return Aldridge to work. Aldridge denies that it did so and claims that he unsuccessfully tried to pursue job opportunities with APCo. During this period, Aldridge started his own “car-hauling business.” The business ultimately failed, a fact APCo claims caused Aldridge to cooperate with its efforts to find him physically suitable employment.

In November 1997, almost one and one-half years after his neck injury, Aldridge accepted APCo’s offer of a meter-reader position in Fort Deposit. On December 2, 1997, Aldridge began training for the job. Three days later, Aldridge injured his knee. Aldridge claims that the injury occurred while he was on his meter-reading walking route. Aldridge sought medical attention for his injury, and APCo would not let him return to work without medical clearance. His doctor cleared him to return to work on January 21,1998.

Aldridge began working as a part-time driver for Material Delivery Service, Inc. (“MDS”), during the period that he was not medically cleared to return to work at APCo. Aldridge’s job at MDS required him to work long hours and sometimes required work that appeared to be outside the physical limitations placed on him by his doctor after his knee injury. Aldridge never told APCo that he was working for MDS; when the doctor cleared him to work and he began to work for APCo again in January, he continued to work at MDS.

On January 21, 1998, Aldridge returned to his work as a meter reader. He was 30 minutes late for work on the first day, however, because of a traffic accident. Al-dridge explained his tardiness to his supervisor, Robin Ray, and offered to stay 30 minutes longer at the end of the day to make up the time. Ray accepted Al-dridge’s offer. The next day, Aldridge did not appear for work. He claims that his knee was hurting when he woke up and that he attempted to call in sick. He said that he was unable to get anyone’s voice mail, and that he took a muscle relaxer and went back to bed. Charlie Britton, with the human resources department at APCo, spoke by telephone to Aldridge later that day. Aldridge told Britton of his knee injury, and Britton instructed him to visit Dr. Kirven Ulmer that afternoon for a fitness-for-duty examination. APCo asserts that Aldridge was an hour late to this appointment; Aldridge insists he was told that the appointment was an hour later than it actually was. Dr. Ulmer ordered a magnetic-resonance-imaging test performed on Aldridge’s knee the next day, and APCo placed Aldridge on light-duty status until the results came in. On January 28, 1998, Dr. Ulmer cleared Aldridge to return to his meter-reader position. During his absence from APCo, Aldridge continued to work for MDS.

Aldridge returned to work at APCo on January 29. On that day, Ray issued Al-dridge a first-level discipline notice for his tardiness on January 21 and his absence on January 22. On February 9, 1998, Aldridge telephoned Ray to ask for the day off, stating that his son had wrecked one of Aldridge’s automobiles the day before and that he needed to take it to get an estimate for the repairs. Ray agreed to allow Aldridge to take the day off, and Aldridge received the day off without pay. According to Aldridge’s testimony, the shop where the car was to be repaired was very busy that morning, and between 11:00 and 11:30 a.m. he found out that the car could not be repaired that day. Aldridge said he then decided to go to MDS and pick up a shift for the rest of the day. Aldridge explained that he did not report at work at APCo that afternoon because he was in a training position and he knew that many meter readers worked only in the mornings. Ray acknowledged that employees who miss half a day do not have to come in to finish the day. Aldridge worked for MDS that day from 12:30 to 9:30 p.m.

On February 17, 1998, Aldridge telephoned APCo and left the following voice message:

“Jean, this is Kevin Aldridge. How about telling Robin [Ray] that that storm came through last night took some shingles off my roof. I’ve got to get it covered up before everything I’ve got in my house ruins and I’ll be in in the morning.”

Ray telephoned her supervisor, Creagh Webb, when she received Aldridge’s message. Webb told Ray to go to Aldridge’s house to verify his excuse. Ray arrived at Aldridge’s home around 11:00 a.m. She said that she did not knock on the door, however, because she feared Aldridge’s rottweiler dog, which was barking. Ray left but returned to Aldridge’s house two more times that day, finally seeing Al-dridge around 3:35 p.m. as he pulled into the driveway. Ray says that Aldridge told her that he had been at home all day, without electricity, waiting in vain for his insurance adjuster to come inspect the roof. Ray also says that Aldridge represented that he had “put back together” his roof “for now.” Aldridge claims that he left the house only to pick his children up from school.

On February 18, Webb interviewed Al-dridge about his absence the previous day. Aldridge told Webb about his roof and said that he had been at home all day waiting for the insurance adjuster. Webb said that Aldridge changed his story during the interview and that he became suspicious of the veracity of Aldridge’s statements. Later that day, Webb initiated an internal investigation of Aldridge’s February 17 absence.

On February 18, Pat Cagle, with APCo’s corporate security department, interviewed Aldridge about his February 17 absence. After the interview, Cagle drafted a written statement that reflected Al-dridge’s comments during the interview. Aldridge refused to sign the statement. Cagle and Aldridge, along with Aldridge’s union representative, then drove to Al-dridge’s house to investigate the status of the roof. Cagle photographed the area Aldridge designated as having been damaged by the storm and saw four missing shingles. The affected area of the roof was not covered by a tarp. On February 19, Cagle interviewed Aldridge’s insurance agent, who stated that he had never scheduled an appointment for Aldridge’s insurance adjuster, Hugh Patterson, to inspect the roof. Cagle also questioned Patterson, who confirmed that no appointment had been made. Aldridge explains this circumstance by stating that his wife had talked to the representative of the insurance company and that from their conversation he assumed that an appointment had been made.

Cagle delivered his report to Webb on February 26. After reading Cagle’s findings, Webb decided to investigate Al-dridge’s absence on February 9, the date upon which he had asked to be off to get a repair estimate on his wrecked car. On February 27, Aldridge won a bid for a meter-reader position in Tallassee and was consequently transferred from Webb’s supervision. Despite this transfer, the investigation into Aldridge’s February 9 absence continued.

On February 27, Cagle interviewed Al-dridge about his February 9 absence. Al-dridge told Cagle that he went to MDS to visit his brother, an MDS employee, that afternoon and that he went home when it was “beginning to get dark.” Cagle again presented Aldridge a written statement summarizing their conversation, which Al-dridge again refused to sign. Aldridge asserts that it was at this interview that Cagle asked Aldridge if he worked for MDS. APCo contends that this topic was not discussed with Aldridge until March 16.

Cagle continued his investigation by interviewing Bruce Werbach, the terminal manager of MDS, and speaking with a representative of McKinnon Motors, where Aldridge said he had gone for repairs on his car. On March 16, Cagle interviewed Aldridge again in order to have Aldridge explain the inconsistencies in his February 27 interview. According to APCo, Cagle told Aldridge that APCo knew that he was working for MDS, and he asked Aldridge to sign a release giving APCo access to his MDS driving records. Aldridge refused the request, but he admitted that he worked for MDS. Webb joined the meeting, asked Aldridge to sign the release, and told him that APCo currently had enough information in his file to discharge him. Aldridge contends that he told Webb about his workers’ compensation claim against APCo at this meeting; however, at trial, Webb did not remember being told of Aldridge’s workers’ compensation claim at that time. Aldridge also asserts that he attempted to tape-record these meetings but that Cagle would not allow it, citing APCo policy. Aldridge refused Webb’s request that he sign the release. Webb told Aldridge to stay home on March 17, with pay, and to decide whether he was going to sign the release.

After this meeting, Cagle gave Webb his report on Aldridge’s absences. Webb consulted this report and William Killian, of APCo’s human resources department, in considering Aldridge’s status with APCo. On March 18, Webb and Cagle again met with Aldridge and his union representative. Webb asked Aldridge for the release, explaining that APCo needed the information to which the release would allow access to ensure that Aldridge had not been working for MDS when he should have been working for APCo. Aldridge again refused to sign the release. Webb warned Aldridge two more times that he would be discharged if he did not sign the release. Webb and Cagle offered to remove the language in the release that Al-dridge found objectionable. Adridge’s union representative advised him to sign the release. Adridge acknowledged that he knew he would be discharged if he did not sign the release, but he continued to refuse to do so. Webb then told Adridge that he was being discharged for making misrepresentations, for failing to properly report his absences, and for failing to maintain proper attendance.

II. Procedural History

On February 18, 1999, Adridge sued APCo, asserting claims of retaliatory discharge, invasion of privacy, intentional infliction of emotional distress, and tortious interference with a business relationship. On July 20, 2000, APCo filed a motion for a summary judgment as to all of A-dridge’s claims. On March 12, 2001, the trial court entered a summary judgment in favor of APCo as to all but Adridge’s retaliatory-discharge claim. APCo then filed an amended answer asserting that § 301 of the Labor Management Relations Act of 1947, codified at 29 U.S.C. § 185(a), preempted Adridge’s retaliatory-discharge claim. Adridge filed a motion to strike APCo’s amended answer. APCo also filed a motion for a summary judgment based on the alleged preemption. The trial court, determining that the claim was not preempted, struck APCo’s amended answer. On September 10, 2001, a jury trial began on the retaliatory-discharge claim. At the close of Adridge’s case, APCo filed a motion for a JML. The trial court denied the motion, and APCo presented its case. At the conclusion of the evidence, APCo renewed its motion for a JML, which the trial court again denied. On September 20, 2001, the jury returned a verdict in favor of Adridge in the amount of $500,-000 — $250,000 in compensatory damages and $250,000 in punitive damages.

APCo filed a posttrial motion for a JML pursuant to Rule 50 and a motion for a new trial or a remittitur of the punitive-damages award pursuant to Rule 59, Aa. R. Civ. P., and filed briefs in support of its motions. Adridge filed a response, and the trial court heard oral argument on APCo’s motions. On December 31, 2001, the trial court entered an order denying all of APCo’s posttrial motions. APCo appealed.

III. Standard of Review

We apply the same standard of review to a ruling on a motion for a JML as the trial court used in initially deciding the motion. This standard is “indistinguishable from the standard by which we review a summary judgment.” Hathcock v. Wood, 815 So.2d 502, 506 (Aa.2001). We must decide whether there was substantial evidence, when viewed in the light most favorable to the plaintiff, to warrant a jury determination. City of Birmingham v. Sutherland, 834 So.2d 755 (Aa.2002). In Fleetwood Enters., Inc. v. Hutcheson, 791 So.2d 920, 923 (Aa.2000), this Court stated that “ ‘[substantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.’ ” 791 So.2d at 923 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Aa.1989)).

The trial court denied APCo’s motion for a JML at the close of Adridge’s evidence and again at the conclusion of all of the evidence. It is unnecessary to review the record as it stood at the time APCo moved for a JML at the close of Aldridge’s evidence because, even assuming the motion was erroneously denied at that time, we review the record as of the time the motion for a JML was renewed at the close of all the evidence. Although before the adoption of -the Alabama Rules of Civil Procedure a defendant challenging the sufficiency of the evidence at the close of a plaintiffs case by a demurrer to the evidence waived his right to proceed, a defendant can move for judgment as a matter of law at the close of the plaintiffs case and, if the motion is denied, present evidence as a part of its defense. Rule 50, Committee Comments on 1973 Adoption. However, by electing to offer evidence, the defendant waives any error in the trial court’s denial of the motion for a JML at the close of plaintiffs evidence. See Potti v. Duramed Pharmaceuticals, Inc., 938 F.2d 641 (6th Cir.1991); Trustees of the University of Pennsylvania v. Lexington Ins. Co., 815 F.2d 890 (3d Cir.1987) (applying the comparable Rule 50, Fed.R.Civ.P.); 9A Charles Alan Wright & Arthur R. Miller, Federal Practice and Procedure: Civil § 2534 n. 3 (2d ed.1995). We therefore review the record as of the close of all of the evidence.

IV. The Prima Facie Case

APCo argues that the trial court applied an incorrect standard for determining when a plaintiff has established a prima facie case of retaliatory discharge. The trial court, quoting Dunn v. Comcast Corp., 781 So.2d 940, 943 (Ala.2000), stated that a plaintiff could establish a prima facie case of retaliatory discharge by showing substantial evidence of “1) an employment relationship; 2) an on-the-job injury; 3) notice to the employer of an on-the-job injury; and 4) subsequent termination of employment.” APCo asserts that the trial court’s reliance on Dunn was misplaced and that the standard enumerated by the trial court would allow an employee to establish a prima facie case of retaliatory discharge merely by filing a workers’ compensation claim and subsequently being discharged.

APCo contends that in this context to establish a prima facie case an employee must show that he was discharged “because” he filed a workers’ compensation claim. APCo points us to this Court’s decisions in Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364 (Ala.1988), and G.UB.MK Constructors v. Carson, 812 So.2d 1175 (Ala.2001). In Twilley, this Court held that “an employee may establish a prima facie case of retaliatory discharge by proving that he was ‘terminated’ because he sought to recover workers’ compensation benefits, which would be an impermissible reason.” 536 So.2d at 1369. In G.UB.MK. Constructors, this Court stated that “ ‘[i]n order to establish a prima facie case of retaliatory discharge the plaintiff must present substantial evidence that he was terminated solely for seeking workers’ compensation benefits.’ ” 812 So.2d at 1177 (quoting Kent Corp. v. Hale, 699 So.2d 954, 958 (Ala.1997)). APCo also points to § 25-5-11.1, Ala.Code of 1975, which states that an employee cannot be discharged “solely because” he or she has brought a claim for workers’ compensation benefits.

, It is clear from the differing interpretations by the trial court and by APCo that we must clarify the proof necessary for establishing a prima facie case of retaliatory discharge. Section 25-5-11.1 provides the basis for a claim of retaliatory discharge when one has been discharged in response to the filing of a claim for workers’ compensation benefits. Section 25-5-11.1states, in part: “No employee shah be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits.... ” (Emphasis added.) In Bleier v. Wellington Sears Co., 757 So.2d 1163 (Ala.2000), we held that whether an employee was “willing and able” to return to work was not part of a prima facie case of retaliatory discharge. In doing so we stated:

“Against the bare-bones framework of § 25-5-11.1, creating a remedy for a retaliatory discharge, the courts of this state have been required to flesh out the elements of this relatively new cause of action. One of the fundamental rules of statutory construction is that a court is to determine and give effect to the Legislature’s intent in enacting a statute. Norfolk S. Ry. Co. v. Johnson, 740 So.2d 392 (Ala.1999). In construing acts of the Legislature, we ascertain its intent from the language used in the statute itself, if possible, as well as from the reason and necessity for the act and the goals the Legislature sought to accomplish. McGuire Oil Co. v. Mapco, Inc., 612 So.2d 417 (Ala.1992); Advertiser Co. v. Hobbie, 474 So.2d 93 (Ala.1985). If the statute is ambiguous, then we ‘may consider conditions that might arise under the provisions of the statute and examine results that would flow from giving the language in question one particular meaning rather than another.’ Norfolk S. Ry. Co., 740 So.2d at 396. Section 25-5-11.1 prohibits an employee’s discharge ‘solely because the employee has instituted or maintained [an] action’ seeking workers’ compensation benefits. In Twilley, 536 So.2d at 1364, this Court held that the term ‘solely,’ as used in the retaliatory-discharge statute, was intended to give the statute remedial effect. Because the statute is remedial legislation, we must construe § 25-5-11.1liberally in order to effectuate its beneficent purposes. Id.
“... However, at the same time, we must refrain from construing § 25-5-11.1in a manner that revises the at-will doctrine beyond the extent necessary to accommodate the obvious legislative purpose.”

Bleier, 757 So.2d at 1168-69. Our inquiry today leads us to again construe § 25-5-11.1liberally, yet we are cognizant that we must refrain from revising the at-will doctrine beyond the extent necessary to accommodate the legislative purpose.

The language of § 25-5-11.1 and our caselaw support a determination that the trial court here applied an incorrect standard in deciding whether Aldridge had established a prima facie case. It is true that in Dunn we stated that a trial court determining whether to grant a defendant’s motion for a summary judgment should “ask whether the employee has shown: (1) an employment relationship; (2) an on-the-job injury; (3) notice to the employer of the on-the-job injury; and (4) subsequent termination of employment.” 781 So.2d at 943. However, the language in Dunn was meant to clarify that after Bleier, a showing that the employee was “willing and able” to return to work was not necessary to establish a prima facie case. See id. Implicit in our Dunn reasoning was the necessity for a causal link between the plaintiffs filing of a workers’ compensation claim and his subsequent discharge. We stated that once an employee has established a prima facie case “[t]he burden would then shift to the employer to rebut the inference that the discharge was retaliatory, by articulating a nonretaliatory reason for the discharge, supported by substantial evidence.” 781 So.2d at 943. If the only showings required to establish a prima facie case were the four explicitly listed in Dunn and quoted by the trial court, there would be no “inference that the discharge was retaliatory’ and no need for the burden of proof to shift from the employee to the employer.

A plaintiff must prove a causal connection between the workers’ compensation claim and the subsequent discharge in order to establish a prima facie case. See, e.g., Twilley, 536 So.2d 1364; Hayden v. Bruno’s, Inc., 588 So.2d 874, 876 (Ala.1991) (affirming the trial court’s summary judgment for Bruno’s because the plaintiff “presented no evidence that Bruno’s terminated him because he had filed a workmen’s compensation claim” and refusing to “assume, that, because he was terminated after he filed th[e] claim, the termination was retaliatory”). This Court has determined that a plaintiff established a prima facie case of retaliatory discharge by proving: 1) that he filed a workers’ compensation claim for a work-related injury, 2) “that the injury prevented him from working,” and 3) “that when he returned to work he was informed that he no longer had a job.” Graham v. Shoals Distrib., Inc., 630 So.2d 417, 418 (Ala.1993); see also Rickard v. Shoals Distrib., Inc., 645 So.2d 1378 (Ala.1994); Overton v. Amerex Corp., 642 So.2d 450 (Ala.1994). This line of cases relies on this Court’s determination in Culbreth v. Woodham Plumbing Co., 599 So.2d 1120 (Ala.1992), that the plaintiff had established a prima facie case by establishing the aforementioned three facts. However, Culbreth referred to Twilley’s standard requiring a determination that the plaintiff was discharged “because” of his workers’ compensation claim. See Culbreth, 599 So.2d at 1122; Twilley, 536 So.2d at 1369. In finding that Cul-breth had established a prima facie case of retaliatory discharge, this Court determined that Culbreth’s discharge was causally connected to his workers’ compensation claim because the evidence indicated that Culbreth had filed a workers’ compensation claim, that he had missed work for approximately two weeks, and that he had been discharged upon his return to work. The temporal proximity in Culbreth, as well as in Graham, Rickard, and Overton, between the filing of the plaintiffs workers’ compensation claim and the plaintiffs return to work and subsequent discharge established a causal connection. No such temporal proximity exists in this case; APCo discharged Aldridge approximately two years after he filed his workers’ compensation claim.

Accordingly, we reiterate the elements requiring a causal connection between an employee’s workers’ compensation claim and the employee’s discharge. In order for an employee to establish a prima facie case of retaliatory discharge the employee must show: 1) an employment relationship, 2) an on-the-job injury, 3) knowledge on the part of the employer of the on-the-job injury, and 4) subsequent termination of employment based solely upon the employee’s on-the-job injury and the filing of a workers’ compensation claim. Any error on the part of the trial court in applying an improper standard at the time of APCo’s motion for a JML at the close of Aldridge’s case was waived when APCo went forward with evidence in support of its defenses. However, because APCo renewed its motion for a JML at the close of all of the evidence and again after judgment was entered, we must review the entire record to determine whether the trial court erred in denying the motion for a JML.

V. Evidence of a Causal Connection

Our caselaw has not addressed in detail the evidence a plaintiff must present to show that he was fired solely because of his workers’ compensation claim. 6 Arthur Larson and Lex K. Larson, Larson’s Workers’ Compensation Law § 104.07[3] (2001), states: “Proximity in time between the claim and the firing is a typical beginning-point, coupled with evidence of satisfactory work performance and supervisory evaluations. Any evidence of an actual pattern of retaliatory conduct is, of course, very persuasive.” We have also found several circumstances considered by other jurisdictions to indicate that a plaintiff has made a sufficient showing of a causal connection so as to establish a prima facie case.

However, the statutes in most states do not use the word “solely” in defining a cause of action for retaliatory discharge. Some states, such as Texas and South Carolina, use a “but for” test, which requires an employee to prove “that, but for the filing of the workers’ compensation claim, the discharge would not have occurred when it did.” Wal-Mart Stores, Inc. v. Amos, 79 S.W.3d 178, 184 (Tex.Ct.App.2002); see also Wallace v. Milliken & Co., 305 S.C. 118, 121, 406 S.E.2d 358, 360 (1991). Other states require less, merely calling for a causal connection between the claim for workers’ compensation benefits and the discharge. See, e.g., General Elec. Co. v. Gilbert, 76 Ark.App. 375, 381, 65 S.W.3d 892, 897 (2002) (requiring “substantial evidence that the workers’ compensation claim was a cause of the discharge”) (emphasis added); Bracken v. Dixon Indus., Inc., 272 Kan. 1272, 38 P.3d 679 (2002); Anderson v. Meyer Broadcasting Co., 630 N.W.2d 46 (N.D.2001); Nestor v. Bruce Hardwood Floors, L.P., 210 W.Va. 692, 694, 558 S.E.2d 691, 694 (2001) (“fifing of a workers’ compensation claim was a significant factor in the employer’s decision to discharge the employee”) (quoting Powell v. Wyoming Cablevision, Inc., 184 W.Va. 700, 403 S.E.2d 717, 721 (1991) (emphasis added)).

Our research reflects that three other states — Indiana, Maryland, and Missouri— use a formulation comparable to ours requiring the discharge to be considered retaliatory be “solely” because of a workers’ compensation claim. See Frampton v. Central Indiana Gas Co., 260 Ind. 249, 297 N.E.2d 425 (1973); Hansome v. Northwestern Cooperage Co., 679 S.W.2d 273 (Mo.1984); Kern v. South Baltimore General Hosp., 66 Md.App. 441, 504 A.2d 1154 (1986). Indiana has determined that “ ‘the word “solely” ... [is] used to mean without an independent lawful reason which would justify the otherwise unlawful action.’ ” Dale v. J.G. Bowers, Inc., 709 N.E.2d 366, 369 (Ind.Ct.App.1999) (quoting Watkins v. Sommer Metalcraft Corp., 844 F.Supp. 1321, 1326 (S.D.Ind.1994)), Any concerns over the stringency of the standard of sole causation established by § 25-5-11.1 should properly be addressed to the Legislature.

Texas considers the following factors as circumstantial evidence of a causal relation between the fifing of a workers’ compensation claim and an employee’s discharge:

“1) knowledge of the compensation claim by those making the decision on termination, 2) expression of a negative attitude toward the employee’s injured condition, 3) failure to adhere to established company policy, 4) discriminatory treatment in comparison to similarly situated employees, 5) sudden changes in an employee’s work performance evaluations following a workers’ compensation claim, and 6) evidence that the stated reason for the discharge was false.”

Chhim v. University of Houston, 76 S.W.3d 210, 218 (Tex.Ct.App.2002). Many states also consider “[p]roximity in time between the filing of the workers’ compensation claim and discharge” a persuasive factor in establishing a causal connection. Rebarchek v. Farmers Coop. Elevator & Mercantile Ass’n, 272 Kan. 546, 555, 35 P.3d 892, 899 (2001) (stating that proximity in time was “a typical beginning point .... [but] not the sole means of showing a causal connection”). See also Anderson, 630 N.W.2d 46; Nestor, 210 W.Va. 692, 558 S.E.2d 691.

Aldridge argues that he presented sufficient evidence to establish a prima facie case of retaliatory discharge. He first points to the memorandum sent by APCo’s human resources department to its disability management section that revealed an intent to “closely monitor” Aldridge. Al-dridge contends that this memorandum shows a plan on APCo’s part “to critically scrutinize” Aldridge in an effort to “set him up for termination.” Next, Aldridge points to six investigations of him he alleges were performed by APCo. He argues that those investigations resulted from his workers’ compensation “claims.”

The first investigation was initiated by APCo management immediately after Al-dridge filed his workers’ compensation claim. The second investigation was initiated by Helen Nalley of the disability management section in February 1998 and included surveillance of Aldridge’s activities by I.C.U. Investigations, a private investigation firm. Aldridge contends that I.C.U. initiated a new investigation of him on February 17, 1998. The fourth, fifth, and sixth investigations referred to by Al-dridge consist of the investigation of Al-dridge’s February 17 absence from work performed by Ray and the investigation into Aldridge’s February 9 and 17 absences performed by Cagle. The latter two investigations by Cagle include the cover pages designating the category of the investigations as “Claims” and the subcategory as “Workers’ Compensation.” Aldridge argues that these cover pages prove that Aldridge’s workers’ compensation claim was the cause of his investigation and his subsequent discharge.

Aldridge contends that APCo’s human resources department, the disability management section, and Webb were sharing information and were working in concert to cause his discharge. Aldridge also points out that Webb discharged Aldridge despite the fact that Aldridge was no longer working under his supervision. Finally, Aldridge argues that he was treated differently than other APCo employees were treated; as an example he points out that his supervisor, Ray, had missed two weeks of work in the past but was not discharged.

APCo contends that there were three legitimate reasons for Aldridge’s discharge. First, Aldridge made several misrepresentations about his absences on February 9 and February 17. APCo contends that Aldridge, in his interview with Cagle, concealed the fact that he was also working for MDS on February 9. As to his February 17 absence, APCo argues that Aldridge misrepresented that he had to miss work to fix his roof, because no work was done on the roof that day. APCo’s second reason for discharging Aldridge is that he failed to maintain regular attendance while he was employed as a meter reader. APCo points out that Aldridge missed 32 days of work between December 2, 1997, and February 17, 1998. APCo argues that the fact that Aldridge had doctor’s excuses for most of those absences does not make this reason pretextual. APCo presented evidence indicating that it applied its attendance policy to Aldridge in the same manner it applied the policy to other employees. The third reason for discharge presented by APCo for Aldridge’s discharge is that he failed to properly report his absences. In addition to Al-dridge’s misrepresentations regarding his February 9 and 17 absences, APCo points to Aldridge’s failure to report to work on time on January 21 and his failure to report to work at all on January 22.

Cases from jurisdictions providing a remedy for retaliatory discharge when an employee has suffered an on-the-job injury and has then filed a claim for workers’ compensation benefits that do not require the employee to prove sole causation are illustrative of the circumstantial evidence sufficient to establish a prima facie case of causation — with one caveat. The issue of sole causation must properly be a question for the jury before these illustrations are applicable. Because in our disposition of this case we conclude that sole causation was not a question for the jury, see part VII, an embrace of these circumstances as determinative under § 25-5-11.1 would be dicta only. We therefore do not reach the question whether the circumstances surrounding Aldridge’s discharge, some of which involve disputed fact questions, would establish a prima facie case of sole causation.

VI. Judgment as a Matter of Law on Sole Causation

This Court applied a comparable statute affording a remedy for retaliatory discharge solely for having served on a jury in Norfolk Southern By. v. Johnson, 740 So.2d 392 (Ala.1999). Johnson, an employee of Norfolk Southern Railway, served as a juror on a case in which Norfolk Southern was the defendant. During voir dire, Johnson was asked if he had ever suffered an on-the-job injury. Johnson replied that he had not, although he actually had sustained four prior on-the-job injuries; for one of those he received a $2,500 settlement from Norfolk Southern and for another he received $8,000 in a class action. As a result of his voir dire answer, Norfolk Southern charged Johnson with conduct unbecoming an employee and ultimately discharged him from its employment. Johnson sued Norfolk Southern for retaliatory discharge. Norfolk Southern moved for a summary judgment, and the trial court denied the motion. Norfolk Southern appealed.

In reviewing the trial court’s denial of Norfolk Southern’s motion for summary judgment, we interpreted § 12-16-8.1, a statute analogous to § 25-5-11.1. Section 12-16-8.1 states that an employee may not be discharged “solely because he serves on any jury empanelled under any state or federal statute.” (Emphasis added.) We stated: “It seems obvious that the Legislature intended to prohibit an employer from discharging an employee solely because the employee was absent from work because he or she was called for jury duty.” Norfolk, Southern, 740 So.2d at 396. We then addressed whether Norfolk Southern discharged Johnson “solely” for serving on the jury or, as it contended, because he provided false answers during voir dire. In making this determination, we used the burden-shifting approach stated in Cul-breth. Once the plaintiff has established a prima facie case, the burden shifts to the defendant to present legitimate reasons for the plaintiffs discharge; if the defendant presents legitimate reasons the burden would shift back to the plaintiff to prove that the stated reasons are pretextual. Culbreth, 599 So.2d at 1122.

Johnson established his prima facie case by showing that his discharge occurred days after he served on the jury. Norfolk Southern countered with its legitimate reason of discharge, i.e., that Johnson had lied in his answers to voir dire questions. Johnson responded by pointing to three facts he claimed proved Norfolk Southern’s stated reason for his discharge was pretextual. Upon review of those facts, this Court determined that a genuine issue of material fact existed with regard to the reason for Johnson’s discharge and that the trial court correctly denied Norfolk Southern’s motion for a summary judgment. 740 So.2d at 398.

Norfolk Southern argued that because Johnson’s voir dire answers had been deemed false by the Public Law Board to which Johnson had appealed his termination, “ ‘no reasonable juror could conclude that [Johnson] was discharged solely for his jury service.’ ” 740 So.2d at 398. Norfolk Southern pointed to Oden v. Norfolk Southern Ry. (No. 96-P-111-S, N.D.Ala., Nov. 25, 1997) (not published in F.Supp.), which held in an analogous context that a summary judgment was proper because “Oden had proffered no ‘credible evidence’ of a discriminatory intent by Norfolk Southern.” 740 So.2d at 398. We distinguished Oden from Johnson on the basis that evidence existed in Johnson that supported Johnson’s claim and that the Public Law Board’s decision offered “no conclusive determination on the question whether Norfolk Southern’s reasons were pretextual.” 740 So.2d at 399. In recognizing the existence of a jury question, we pointed to substantial evidence indicating that discharge was an excessive sanction and a violation of the collective-bargaining agreement.

Aldridge argues that substantial evidence was presented in this case to allow a jury to disbelieve APCo’s proffered reasons and to believe that Aldridge was actually discharged because of his workers’ compensation claim. Aldridge points to this Court’s decision in Culbreth, which stated: “If the plaintiffs prima facie case is strong, and the defendant’s evidence of an asserted reason is weak or equivocal, the jury might simply disbelieve the defendant.” 599 So.2d at 1122. Relying on this statement, Aldridge contends that “[i]t is ■within the jury’s province to accept or reject the power company’s stated reasons as true or untrue.” Aldridge’s brief, p. 53. This Court in Culbreth held:

“The plaintiff does not have to ‘prove’ that the employer’s stated reason is not true unless the defendant’s evidence is sufficiently certain, without more evidence from the plaintiff, to support a directed verdict. If the plaintiffs prima facie case is strong, and the defendant’s evidence of an asserted reason is weak or equivocal, the jury might simply disbelieve the defendant.”

599 So.2d at 1122 (first emphasis added). If the defendant’s evidence relating to the reason for the discharge is “sufficiently certain” to support a directed verdict (now a JML), then the plaintiff must prove that the defendant’s reason is not true. 599 So.2d at 1122.

The clear import of our holding in Norfolk Southern is that where a conclusive determination can be made that retaliation is not the sole basis for the discharge a judgment as a matter of law is appropriate. A plaintiff, therefore, has the burden of presenting sufficient evidence indicating that the plaintiff was discharged because he or she filed a claim for workers’ compensation benefits, but if there is uncontradicted evidence of an independently sufficient basis for the discharge then the defendant is entitled to a judgment as a matter of law. Such a holding is comparable to the rule prevailing in Indiana under a similar statute. See Dale, 709 N.E.2d at 369 (“ ‘the word “solely” ... [is] used to mean without an independent lawful reason which would justify the otherwise unlawful action’ ”). An employer’s stated basis for a discharge is sufficient as a matter of law when the underlying facts surrounding the stated basis for the discharge are undisputed and there is no substantial evidence indicating (a) that the stated basis has been applied in a discriminatory manner to employees who have filed workers’ compensation claims, (b) that the stated basis conflicts with express company policy on grounds for discharge, or (c) that the employer has disavowed the stated reason or has otherwise acknowledged its pretextual status.

If such undisputed evidence is admitted as a part of the plaintiffs case, then the defendant who so moves is entitled to a judgment as a matter of law at that point. If such evidence is established during the defendant’s presentation and the plaintiff cannot thereafter rebut it, then the defendant’s renewed motion for a judgment as a matter of law at the close of all of the evidence is due to be granted. Whether the plaintiffs prima facie evidence is strong and the defendant’s evidence is weak or equivocal and therefore subject to disbelief by a jury, as recognized in Culbreth, must be determined on a case-by-case basis.

VII. Evidence of Sole Causation of Aldridge’s Discharge

Turning to whether a conclusive determination can be made as to sole causation in this case, we must view the evidence in a light most favorable to Al-dridge. See City of Birmingham v. Sutherland, 834 So.2d at 758. After a defendant has presented legitimate reasons for discharge, “ ‘ “[t]he plaintiff then has the burden of going forward with rebuttal evidence showing that the defendant’s [stated] reasons” ’ for terminating the plaintiff are not true.” Culbreth, 599 So.2d at 1122, quoting Twilley, 536 So.2d at 1369, quoting in turn Pushkin v. Regents of the University of Colorado, 658 F.2d 1372, 1387 (10th Cir.1981). As previously noted, we review the entire record, not merely the evidence as it stood at the time APCo first moved for a JML.

The facts surrounding Aldridge’s representation of his need to make immediate repairs to his roof in order to have an excused absence from work constitute undisputed evidence of a misrepresentation. First, Aldridge agrees that the voice-mail message was accurately transcribed. As previously noted, Aldridge stated:

“Jean, this is Kevin Aldridge. How about telling Robin [Ray] that that storm came through last night took some shingles off my roof. I’ve got to get it covered up before everything I’ve got in my house ruins and I’ll be in in the morning.”

The clear import of Aldridge’s message is that he needed an excused absence from work to make emergency repairs to his roof. At oral argument, Aldridge contended that a fair reading of the message was that Aldridge would use the day in an attempt to secure the services of an insurance adjuster, which Aldridge contends he spent the day trying unsuccessfully to do, rather than make repairs to the roof himself. No reference to such activity appears in the message. No reasonable basis exists for the premise that the adjuster could be expected to visit the house and make emergency repairs. No evidence suggests that without financial assistance from his insurance company, Aldridge could not afford to purchase a plastic cover to place temporarily over the damaged area. We reject Aldridge’s contention as an unreasonable and unsupported construction of his unambiguous voice-mail message. Second, Aldridge conceded at oral argument that when a representative of APCo visited the property the next day, no repairs, either temporary or permanent, had been made to the roof. At oral argument, Aldridge suggested that once an excuse had been granted, it did not matter how Aldridge spent the day. Such a position is untenable.

APCo included misrepresentations as a stated basis for Aldridge’s discharge. The evidence established without dispute the existence of a misrepresentation by Al-dridge. Moreover, Aldridge offered no evidence indicating that termination of employment as a sanction for misrepresenting the reason for an absence from work was applied discriminatorily to employees who filed workers’ compensation claims or indicating that such a misrepresentation should not justify a discharge based on either disparate treatment of similar infractions by other employees or indicating that termination otherwise conflicted with stated company policy on grounds for discharge. Nor did Aldridge show that APCo subsequently disavowed its reliance on Al-dridge’s misrepresentation as the basis for its decision to discharge him. This case is therefore readily distinguishable from Norfolk Southern, 740 So.2d at 398-99, where the discharge was considered to be an excessive sanction and a violation of the collective-bargaining agreement, factors that led us to affirm the trial court’s order denying a summary judgment. The evidence of Aldridge’s misrepresentation as to why he missed work on February 17 is neither “weak” nor “equivocal,” and a jury would have no basis to “simply disbelieve” APCo. Culbreth, supra at 31.

That Aldridge’s misconduct might not have been detected without close scrutiny is no basis upon which to shield him from the consequences of his own wrongdoing. The necessary element of discriminatory treatment in the context of claims alleging excessive monitoring is disparate treatment of wrongdoers, not merely getting caught doing wrong. Indeed, Aldridge does not dispute the fact that no repairs were made to his roof on the day of his absence. Thus, in order to survive APCo’s motion for a judgment as a matter of law at the close of all of the evidence Aldridge would have to offer evidence indicating that he did not make misrepresentations regarding his absence on February 17.

APCo has presented undisputed evidence supporting one of its legitimate reasons for discharge — that Aldridge made misrepresentations concerning his absence on February 17 in order to make repairs to his roof. Consequently, Aldridge failed to present substantial evidence that APCo discharged him “solely because [he] has instituted or maintained any action against the employer to recover workers’ compensation benefits,” § 25-5-11.1 (emphasis added). It is therefore unnecessary to address whether other aspects of Al-dridge’s proof would constitute a prima facie case of causation.

VIII. Conclusion

We reverse the trial court’s order denying APCo’s motion for a JML at the close of the evidence and remand the case for the trial court to enter a judgment in favor of APCo as a matter of law. We pretermit consideration of other issues raised by APCo.

REVERSED AND REMANDED WITH INSTRUCTIONS.

HOUSTON, SEE, BROWN, HARWOOD, WOODALL, and STUART, JJ., concur.

JOHNSTONE, J., concurs in the rationale in part.

MOORE, C.J., dissents.

JOHNSTONE, Justice

(concurring in the rationale in part).

I concur in that part of the main opinion which clarifies the standard for establishing a prima facie case of retaliatory discharge. I express no opinion on the other holdings or on the judgment.

MOORE, Chief Justice

(dissenting).

I must dissent from the Court’s decision to reverse the trial court’s denial of APCo’s motion for a judgment as a matter of law in this case. The majority has rewritten the stated requirements for establishing a prima facie case of retaliatory discharge. Such a change is not only unjustified by the statutory law, but also effectively immunizes employers from retaliatory-discharge claims.

The majority’s opinion states that “[a] plaintiff must prove a causal connection between the workers’ compensation claim and the subsequent discharge in order to establish a prima facie case.” 854 So.2d at 563. This holding is in direct conflict with Dunn v. Comcast Corp., 781 So.2d 940 (Ala.2000), where this Court stated:

“[A] trial court, in deciding whether to enter a summary judgment against the employee in a retaliatory-discharge case, should view all evidence in the light most favorable to the employee and ask whether the employee has shown: (1) an employment relationship; (2) an on-the-job injury; (3) notice to the employer of the on-the-job injury; and (4) subsequent termination of employment.... An employee who presents substantial evidence of all four elements has established a prima facie case of retaliatory discharge.”

781 So.2d at 943 (citing Bleier v. Wellington Sears Co., 757 So.2d 1163, 1167 (Ala.2000)). The Court in Dunn could not have been more clear as to what is necessary to establish a prima facie case of retaliatory discharge.

Our Court rationalizes this conflict by stating that it was implicit in the Court’s holding in Dunn that there be “a causal link between the plaintiffs filing of a workers’ compensation claim and his subsequent discharge.” 854 So.2d at 562. As support for this proposition, the majority points out that the Dunn Court stated that after a prima facie case has been established “ ‘[t]he burden would then shift to the employer to rebut the inference that the discharge was retaliatory, by articulating a nonretaliatory reason for the discharge, supported by substantial evidence.’ ” 854 So.2d at 562-63 (quoting Dunn, 781 So.2d at 943) (emphasis added). This Court reasons that if the only requirements for a prima facie case of retaliatory discharge were those clearly stated in Dunn, then “there would be no ‘inference that the discharge was retaliatory1 and no need for the burden of proof to shift from the employee to employer.” 854 So.2d at 563.

The use of the word “inference” by the Court in Dunn clearly suggests that a causal connection is assumed when the plaintiff has shown that he or she was discharged after filing a workers’ compensation claim, not that the inference exists because the plaintiff has explicitly shown a causal connection between the discharge and the filing of the workers’ compensation claim.

That a prima facie case consists of the plaintiffs demonstrating an employment relationship, a work-related injury, the filing of a workers’ compensation claim, and a discharge, has been stated in several cases. Discussing Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1121 (Ala.1992), this Court stated in Graham v. Shoals Distributing, Inc., 630 So.2d 417, 418 (Ala.1993):

“In Culbreth, this Court held that a pri-ma facie case of retaliatory discharge was established by an employee’s proof that he had filed a workers’ compensation claim for a work-related injury, that the injury prevented him from working for a period of time, and that when he returned to work he was informed that he no longer had a job.”

In Ex parte Usrey, 777 So.2d 66, 69 (Ala.2000), this Court stated:

“Usrey established a prima facie case of retaliatory discharge by presenting evidence to support his contentions that he was injured on the job, that his injury prevented him from working for a period of time, and that he was discharged shortly after his employer learned that he had taken steps toward filing a workers’ compensation claim based on the injury.”

777 So.2d at 69. See, e.g., Rickard v. Shoals Distrib. Co., 645 So.2d 1378, 1382 (Ala.1994), and Overton v. Amerex Corp., 642 So.2d 450, 452 (Ala.1994).

The majority opinion distinguishes those cases by observing that in them there was a short period between the plaintiffs’ filing of the workers’ compensation claim and their discharge and concludes that the “temporal proximity” “established a causal connection.” 854 So.2d at 563. However, in none of those cases is the “temporal proximity” between the filing of the claim and the discharge listed as a part of what the plaintiff had to show to establish a prima facie case. On the contrary, each case stated that the plaintiff had demonstrated a prima facie case in a fashion similar to the plaintiff in Culbreth, i.e., that a workers’ compensation claim had been filed seeking compensation for a work-related injury and that after the claim was filed the employee was terminated.

All of those cases, moreover, quote or cite the very same language from Twilley v. Daubert Coated Products, Inc., 536 So.2d 1364 (Ala.1988), which this Court now claims mandates a causal connection in order to make a prima facie showing in a retaliatory-discharge case. In Twilley, the Court stated:

“We hold that an employee may establish a prima facie ease 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.”

536 So.2d at 1369. Obviously, Culbreth and its progeny did not find any conflict between the rule in Twilley and the elements of proof required for a prima facie case restated in Dunn. There is no conflict because a retaliatory discharge is inferred from the employee’s termination by the employer after the employee has filed a workers’ compensation claim.

Twilley itself makes this apparent when it discusses the meaning of the word “solely”, as that word is used in § 25-5-11.1, Ala.Code 1975. In that discussion, the Twilley Court quotes approvingly from the interpretation by the United States Court of Appeals for the Second Circuit of similar language found in the Rehabilitation Act of 1973, which prohibits discrimination against a person “solely by reason of his handicap”:

‘[AJlthough the plaintiff has the ultimate burden of proving by a fair preponderance of the evidence that the defendant discriminated against him on the basis of an impermissible factor, he may establish a prima facie case by proving that he applied for a position for which he was qualified and was rejected under circumstances indicating discrimination on the basis of an impermissible factor. The burden then shifts to the defendant to rebut the presumption of discrimination by coming forward with evidence that the plaintiff was rejected for a legitimate reason, whereupon the plaintiff must prove that the reason was not true but a pretext for impermissible discrimination.’ ”

Twilley, 536 So.2d at 1369 (quoting Doe v. New York University, 666 F.2d 761, 776 (2d Cir.1981)) (emphasis added). The “circumstance” of being fired after having filed a workers’ compensation claim creates the inference that the employee was terminated because of the workers’ compensation claim, establishing the prima fa-cie case.

I agree that a plaintiff has the ultimate burden of proving by substantial evidence that he was fired because he filed a workers’ compensation claim, but that is an issue for the jury. Section 25-5-11.1 states the ultimate issue in a retaliatory-discharge case: “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.” (Emphasis added.) To prevail in such a case the plaintiff must ultimately prove to the jury that he was discharged because he filed a workers’ compensation claim.

However, the presentation of the prima facie case need only be sufficient to raise a genuine issue of material fact and necessitate a response from the defendant. Providing the elements for retaliatory discharge given in Dunn accomplishes this task. That does not mean that evidence sufficient to establish those elements will be the only evidence presented by the plaintiff. Indeed, as has already been stated in the cases cited above, after the plaintiff presents a prima facie case, the employer may respond by giving legitimate reasons for the employee’s termination. According to our cases, if those reasons are not refuted, summary judgment will be entered for the defendant. However, if the plaintiff responds by presenting substantial evidence that the stated reasons for termination are a pretext, then the case should be sent to the jury.

Aldridge established a prima facie case, showing that he had an employment relationship with APCo, that he was injured on the job, that he filed a claim for workers’ compensation benefits, and that he was subsequently terminated by APCo. APCo presented several reasons for Aldridge’s termination from APCo’s employment, thus requiring Aldridge to present substantial evidence showing that the stated reasons were not the actual reasons for his discharge. “[Sjubstantial evidence is evidence of such weight and quality that fair-minded persons in the exercise of impartial judgment can reasonably infer the existence of the fact sought to be proved.” West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989).

The majority further evaluated the facts relative to Aldridge’s termination, an exercise best left to the jury. It was shown that Aldridge was less than truthful with his employer; nevertheless, Aldridge attempted to explain those misrepresentations. The real reasons for the termination are best left to the jury. As the Court observed in Culbreth, “[a]n employer could almost always say either Sve hired someone to take your place,’ or “we no longer have enough business to continue your employment.’ Thus, we think a jury question is presented as to whether [the employer’s] asserted reason is a legitimate one or only a pretext.” Culbreth, 599 So.2d at 1128.

More troubling though than the majority’s conclusion on the facts in this case is its rewriting the requirements for establishing a prima facie case of retaliatory discharge. Few employers will provide a direct causal connection between an employee’s discharge and the employee’s filing of a workers’ compensation claim, thus making circumstantial evidence critical in a retaliatory-discharge case. Whether that evidence proves what § 25-5-11.1 requires is a determination best left to the jury, but requiring proof of a causal connection at the initial stage of the case will keep many such cases from ever going to a jury. The statute does not demonstrate that the Legislature intended that requirement, nor does such an interpretation square with our traditional rule of construing the workers’ compensation statutes liberally. For these reasons, I dissent.

      . APCo counters Aldridge’s assertion that he picked up a shift on February 9 by pointing to the testimony of Bruce Werbach, terminal manager of MDS’s Calera terminal, that Al-dridge was scheduled to work on February 9.

      . Compare Ex parte G.G., 601 So.2d 890 (Ala. 1992), stating the rule in criminal cases that when a motion for a judgment of acquittal is denied at the conclusion of the State’s evidence, an appellate court reviews the evidence as it stood at the time of the motion.

      . In characterizing the impact of the majority opinion, the Chief Justice, in his dissent, overreacts to the plight of the employee. An employer should use caution in interpreting today's holding in the restrictive terms of the dissenting opinion.

      . Temporal proximity alone has not always been deemed sufficient. See Brungart v. Bell-South Telecomm., Inc., 231 F.3d 791, 799 (11th Cir.2000)(“However, ... temporal proximity alone is insufficient to create a genuine issue of fact as to causal connection where there is unrebutted evidence that the decision maker did not have knowledge that the employee engaged in protected conduct.”).

      . Aldridge used the word "claims” in his brief to this Court. However, there is no evidence indicating that a workers’ compensation claim was filed with regard to his December 1997 knee injury or that such a claim is pending.

      . Tom Killian of APCo's labor relations department testified: "In other cases of APCo, we have had employees with legitimate illnesses, medical issues who could not be at work. They were terminated, grieved, arbitrated, and the Company won the arbitration.”