author: THOMAS, Judge.

text:
    BLACK CREEK, INC. v. Ray Keith WOOD.
    2071076.
    Court of Civil Appeals of Alabama.
    March 12, 2010.

      Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellant.
    William S. Halsey III, Birmingham; and Timothy A. Hughes, Birmingham, for ap-pellee.
   On Application for Rehearing

THOMAS, Judge.

The opinion of July 31, 2009, is withdrawn, and the following is substituted therefor.

Ray Keith Wood was employed by Black Creek, Inc., in May 1999. Black Creek manufactured handguns until it ceased operations in 2001. Wood was a machinist; he would use different machines to cut blocks of steel, to shape the frames of the guns, and to shape the barrels, and he also assembled the handguns. During his employment with Black Creek, Wood said that his forearms were subject to repetitive stress from running the machines and lathes and that he suffered discomfort for several months before he pulled a muscle loose in his left arm in February 2000.

Wood went to see Dr. William Stewart at Northeast Orthopedic and Sports Clinic on January 7, 2000; Wood was referred to Dr. Stewart by his primary-care physician, who Wood had been seeing for months for pain in his elbows and arms. At that time, Wood had not yet suffered an injury at work and had not yet made a workers’ compensation claim; his treatment was being paid for by his private health insurer, and he indicated on his patient questionnaire that his injury was not work related. When conservative measures prescribed by Dr. Stewart failed to give Wood any relief, Dr. Stewart recommended surgery for Wood’s left arm on February 14, 2000. On March 7, 2000, after being notified of Wood’s claim that his injury was, in fact, work related, Black Creek’s workers’ compensation insurance earlier requested Wood’s medical records to review in order to determine whether Wood’s injury was compensable and to determine whether the surgery should be authorized; this process took approximately five weeks, which Virginia Fail, the workers’ compensation coordinator at Northeast Orthopedic, testified was a typical amount of time for such a review. On April 18, 2000, the carrier authorized Wood’s surgery, which was performed by Dr. Stewart on May 5, 2000.

On May 9, 2000, Black Creek’s human-resources manager, Melanie Tullís, contacted Dr. Stewart’s office and advised that Black Creek had a light-duty position available for Wood. According to Tullís and Fail, Tullis’s telephone call was simply to advise that, once Dr. Stewart felt it appropriate, Wood could be released to a light-duty position. Both women testified that Tullis’s purpose was not to attempt to coerce Dr. Stewart into releasing Wood to light duty.

On June 7, 2000, Dr. Stewart’s office faxed a return-to-work slip to Black Creek indicating that Wood would be released to return to work on June 8, 2000. However, Dr. Stewart had not informed Wood that he could return to work on June 8, 2000. Instead, Dr. Stewart had told Wood he could not return to work until after his next appointment on June 19, 2000. When they discovered the discrepancy between the information that had been relayed to Wood and the information contained in the faxed return-to-work slip, Tullis contacted Dr. Stewart’s office and Wood went to Dr. Stewart’s office to clear up the discrepancy. On June 9, 2000, Dr. Stewart’s office faxed to Black Creek a second return-to-work slip, indicating that Wood was to return to work on June 12, 2000, that he was released to perform right-handed work only, and that he was to have his left arm in a brace.

Wood returned to work on June 12, 2000, which was a Monday. His time card reflects that he did not work on June 13, 2000. During the June 12 work week, Wood had three physical-therapy appointments. Wood’s time card indicates that he had a physical-therapy appointment on June 12, 15, and 16. Wood appears to have worked his full shift on June 12, having arrived at approximately 6:30 a.m. and clocking out at 2:30 p.m. to attend his appointment. However, on both June 15 and 16, Wood left work at 2:00 p.m., before the end of his shift, to attend his appointments. According to Tullis, because company policy required employees to attempt to schedule their doctor’s and physical-therapy appointments either at the beginning of their shift, near the end of their shift, or after their shift, Tullis wrote up a disciplinary warning regarding Wood’s failure to follow this policy on June 16, 2000. The disciplinary warning also warned that Wood was required to notify either Tullis or his supervisor if he was required to leave early to attend a doctor’s or physical-therapy appointment. Wood was never presented -with this disciplinary warning.

According to Wood, his light-duty position first consisted of sorting and sometimes bagging small “roll pins.” However, Wood said that he was soon required to lift and weigh large pieces of scrap metal that weighed 20 to 30 pounds. Wood said lifting the large pieces of metal repeatedly during the day caused his right arm to develop significant pain. Wood testified that he informed his supervisor, Dorothy Willingham, that his light-duty job was hurting his right arm.

Willingham testified that Wood never complained about pain or discomfort to her during the week he worked under her supervision. Willingham explained that Wood was required to sort the small roll pins and that he was not given the task of sorting and weighing large pieces of scrap metal. Likewise, George Robertson, another supervisor in the plant, testified that Wood’s light-duty position did not involve lifting large pieces of scrap metal. Robertson recalled that Wood complained about having to be at work that week, but Robertson said that Wood never mentioned discomfort or pain to him.

On June 19, 2000, Wood had a scheduled doctor’s appointment. At that appointment, Wood complained to Dr. Stewart that his light-duty job' was causing his right arm to hurt. Dr. Stewart gave Wood a written excuse for missing work on June 19, 2000, which contained a notation indicating that Black Creek should “ease up” the work to which Wood had been assigned; when Black Creek received this excuse is not clear from the record. Wood did not go to work after his appointment with Dr. Stewart. According to Tullis, Wood had telephoned to inform his supervisor that he had a doctor’s appointment that morning and had indicated he would telephone after the appointment to let a supervisor know if he would not be returning to work that day. Wood testified that he did not know that he was required to return to work or to notify Black Creek if he was not coming in after the appointment. Because he had not returned to work or telephoned, Tullis wrote up another disciplinary warning for Wood regarding this matter on June 19, 2000. Wood was never presented with this disciplinary warning.

On June 20, 2000, Wood arrived at work shortly before 7:00 a.m. for his scheduled shift. According to Wood, he had had a hard time getting up that morning and he had required assistance from his wife to get dressed. He explained that both of his arms hurt. Wood went to the front office around 7:00 or 7:30 to discuss his need to see the doctor again. According to Wood, he spoke with Daryl Weaver, the president of the company, about his increased pain; Wood said that when he told Weaver that he needed to visit the doctor, Weaver told him to “do what you gotta do” and to tell Tullís. Weaver, however, testified that he did not recall having a conversation with Wood on June 20, 2000.

Wood said that, after he spoke with Weaver, he then went to see Tullís, who had recently arrived at work; he approached Tullís as she was headed to the restroom. According to Wood, he asked Tullís if she had gotten some paperwork, to which she replied yes but then told him that she “did not have time to fool with him” at the moment. Wood waited on Tullís outside the restroom and, upon her reappearance, told her that he needed to speak with her, to which Tullís again responded that she did not have time. Wood said that, at some point, he informed Tullís that he was going to the doctor. Wood said that Tullis’s responses perturbed him and that he was agitated; he described himself as being “pissed.”

Tullís testified that Wood had approached her on the morning of June 20, 2000, that he had asked her if she had received “his paperwork,” that she had told him yes, that he had told her he needed to speak with her, and that she had told him that she was “in the middle of something” and that she could not speak with him at that time. Tullís explained that she was engaged in an orientation for two new employees that morning and that she did not have the time to review Wood’s paperwork or to discuss it with him. Tul-lís said that Wood appeared angry and agitated when she left him in the hallway and that he was making some comments as she walked away. Tullís noted that the two disciplinary warnings in Wood’s file had not ever been presented to Wood, although she was aware of them that morning.

Two other employees, Byron Pledger and DeLynn Minshew, overheard a comment Wood admits he made as he left the office area that morning. Both employees signed statements on June 20, 2000, indicating that they had overheard Wood say, as he left the office area: “She can just kiss my ass.” Both employees also testified at trial that they had overheard Wood make that statement. Minshew testified that she had heard a “commotion” and loud voices, prompting her to leave her desk to investigate, and that she heard the comment as Wood slammed the door between the front office and the shipping area. Wood admitted that he had made the statement, but he characterized it as being “to himself’ and as being “muttered under his breath.”

After leaving the front office, Wood proceeded to the time clock and clocked out at 8:00 a.m. When he arrived at the time clock, Robertson was there. According to Robertson, Wood was agitated and seemed upset. Robertson said that he recalled that Wood stated: “ ‘If she doesn’t have time to see me’ ... he said he’s going to slap that bitch.” Robertson, like Minshew and Pledger, signed a statement regarding the incident on June 20, 2000; Robertson’s June 20 statement indicated that Wood had said “I’m leaving, I am going home before I slap that bitch, if that workmen comp, lady don’t have time to talk to me, I’m going to the house.” Robertson testified that Wood had not mentioned going to see the doctor but had said he was going home. At trial, Wood denied having said he would slap Tullís.

At some point that morning, Tullís received information regarding Wood’s leaving work and the statements he had allegedly made. Tullís notified Tommy Marshall, the plant manager, that Wood had left work without permission. Marshall reviewed the statements given by Robertson, Minshew, Pledger, and Tullís regarding Wood’s comments that morning, and Marshall interviewed them as well. Marshall testified that he had also inquired of Willingham and Tullís whether Wood had received permission to leave. Willingham testified at trial that Wood had not asked her permission to leave; however, Wood said that she had given him permission to leave and had said that she was surprised that he had come in to work at all. Tullís also testified that she had not given Wood permission to leave and denied that Wood had ever mentioned a need to go to the doctor to her that day.

After Marshall had satisfied himself that Wood had left work without permission and had made the comments that Min-shew, Pledger, and Robertson had recounted in their statements, Marshall decided to discharge Wood. According to Marshall, the company personnel handbook treated leaving work without permission as if the employee had voluntarily quit his or her employment. The handbook provision reads:

“Leaving work (clocking out) prior to the end of the scheduled shift is considered leaving early. Leaving prior to the end of the scheduled work shift requires approval in all eases from the employee’s immediate supervisor. Leaving the company premises prior to the end of the scheduled shift without approval will be considered to have quit.”

Marshall said he also considered the comments that other employees had overheard when making the decision to discharge Wood. Marshall said that the use of foul language at Black Creek was strongly discouraged. Although Marshall admitted that the occasional use of profanity around the manufacturing plant might be considered “shop talk,” he had not heard of employees using such language in the front office, where a more professional demeanor was expected. Weaver testified that the use of foul language around the plant was not acceptable and that this policy was well known throughout the plant. Minshew also testified that Weaver was adamant about the prohibition of foul language; she said that it was uncommon to hear such language at the plant.

In addition, Marshall said that the fact that Wood’s use of profanity was directed toward a female managerial employee also figured into his decision. Finally, Marshall noted that Wood’s comment about slapping Tullís was, in his opinion, a threat directed at a managerial employee. The portion of the handbook applicable to Marshall’s decision to discharge Wood based on his alleged comments is the general section on disciplinary action:

“Failure to observe established rules and practices can lead to disciplinary action including formal warnings, suspension, probation, and discharge. The following is a noninclusive list of misconduct that may lead to immediate adverse personnel action.
“8. Language or actions which are inappropriate to the workplace or which create a racially or sexually harassing environment.
“5. Threatening, assaulting, or abusing any employee, customer, or company visitor.

As noted above, Wood admitted making the comment that Tullís could “kiss my ass,” Wood testified that the handbook indicated that one could be discharged for the use of foul language. Although Min-shew and Pledger both testified that Wood had made the comment, Wood stated that no one had been around to hear his comment. Wood specifically testified that, in his opinion, his comment would have violated company policy only if he had said it directly to Tullís. Thus, Wood maintained that the fact that he had not made the comment directly to Tullís and had muttered it to himself instead should have bearing on whether the comment was considered significant enough for disciplinary action.

Wood also said that he knew of other employees who had used foul language in the workplace but had not been disciplined; when questioned regarding names or incidents, Wood refused to provide further information. Weaver testified that he “guessed” that he knew of employees who were not discharged despite the use of foul language at the plant. However, he further explained, “I cannot honestly sit here and say I know of one other person that was terminated if it was totally for the foul language or not. I’m not sure. But it was part of it.”

Tullís testified that Wood was considered to have voluntarily quit because he left work without permission. She further stated that, had he not quit, he would have been discharged as a result of his behavior on June 20, 2000. Tullís explained that, had Wood remained at work on June 20, 2000, he would have been called in to discuss the June 16 and June 19 warnings and his actions on June 20. Tullís noted that Black Creek did not have a progressive discipline policy. According to Tullís, Wood would have been discharged because of his actions on June 20 and not because of the earlier warnings.

Marshall testified that he was the final decision-maker on all employment decisions. When asked if someone else had suggested to him that Wood be discharged, he said that he did not remember anyone doing so; he further explained that he had made his decision after being presented with the statements and interviewing the witnesses to Wood’s comments. Although he admitted that he knew about the two disciplinary warnings in Wood’s file that had not been presented to Wood, he said that the two things that influenced his decision to discharge Wood were the comments that he allegedly made and his walking off of the job without permission. Marshall testified that Wood’s workers’ compensation claim played no role in his decision to end Wood’s employment with Black Creek.

To establish a prima facie case of retaliatory discharge, a discharged employee must establish that the employee and the employer had an employment relationship, that the employee suffered a work-related injury, that the employer knew that the employee had suffered a work-related injury, and that the employee was subsequently discharged based solely on his or her filing of a workers’ compensation claim arising from the work-related injury. Massey v. Krispy Kreme Doughnut Carp., 917 So.2d 833, 836-37 (Ala.Civ. App.2005) (quoting Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala.2002)). Because direct evidence demonstrating that an employer has discharged an employee solely because the employee filed a workers’ compensation claim is not often easily obtained, an employee may establish that the actual reason for the discharge was his or her filing of a workers’ compensation claim by circumstantial evidence. Alabama Power Co. v. Aldridge, 854 So.2d at 564-65. In Aldridge, our supreme court discussed seven factors that can be circumstantial evidence of the necessary causal relationship between the employee’s workers’ compensation claim and that employee’s discharge. Aldridge, 854 So.2d at 564-65. In addition to proximity of time between the filing of a claim and the discharge, id. at 564, the Aldridge court adopted the following six factors:

“ ‘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.’ ”

Id. at 564-65 (quoting Chhim v. University of Houston, 76 S.W.3d 210, 218 (Tex.Ct. App.2002)).

Once a discharged employee has demonstrated a prima facie case of retaliatory discharge, the burden shifts to the employer to establish a legitimate reason for the employee’s discharge. Ford v. Carylon Corp., 937 So.2d 491, 501 (Ala.2006). Once the employer has advanced a legitimate reason for the discharge, the burden again shifts to the discharged employee, who must present evidence demonstrating that the legitimate reason advanced by the employer is a mere pretext. Flint Constr. Co. v. Hall, 904 So.2d 236, 250 (Ala.2004). If the employer is able to establish a legitimate reason and that reason is uncontra-dicted, the employer is entitled to a judgment as a matter of law (“JML”) in its favor. Aldridge, 854 So.2d at 568.

“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.”

Id.

In August 2000, Wood sued Black Creek, seeking workers’ compensation benefits and alleging that he had been discharged in retaliation for filing a workers’ compensation claim. The two claims were severed, and the workers’ compensation claim was eventually settled. After a trial on the retaliatory-discharge claim in December 2007, the trial court entered a judgment in favor of Wood and awarded him $50,000 in damages. After entertaining several postjudgment motions, the trial court entered an amended judgment stating that Wood had proven a prima facie case of retaliatory discharge and that the stated reason for his discharge was pretex-tual and stating that Wood was awarded $20,000 in back wages and $30,000 for mental anguish. Black Creek appealed to the Alabama Supreme Court, which transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

As in Aldridge, Black Creek moved for a JML at both the close of Wood’s evidence and at the close of all the evidence. Thus, we consider all the evidence in determining whether the trial court erred in denying the motion for a JML. Aldridge, 854 So.2d at 564.

“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 (Ala. 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 (Ala.2002). In Fleetwood Enters., Inc. v. Hutcheson, 791 So.2d 920, 923 (Ala.2000), this Court stated that “[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.” ’ 791 So.2d at 923 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala.1989))

Aldridge, 854 So.2d at 560.

Black Creek makes several arguments on appeal. Chiefly, however, it argues that the evidence presented regarding its legitimate basis for discharging Wood entitled it to a JML under the standard enunciated in Aldridge. As noted above,

“[a]n 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.”

Aldridge, 854 So.2d at 568. Black Creek argues that all of these requirements are met in the present case.

Black Creek points out that, even though Wood’s alleged statement regarding slapping Tullís and his allegedly leaving work without permission were sharply disputed below, one other part of Wood’s behavior on June 20, 2000, which also formed part of the basis for Wood’s discharge, was undisputed. Specifically, Black Creek relies on Wood’s admission that he made the statement “she can just kiss my ass” in reference to Tullís after she was unable to speak with him on June 20, 2000. Although Wood argued that the fact that he “mumbled” the comment and did not make it directly to Tullís somehow ameliorated it, Wood admitted that, under the company handbook, the use of foul language was grounds for disciplinary action up to and including discharge. Thus, Black Creek is correct that one set of facts surrounding the stated basis for the discharge is undisputed. Wood’s comment that Tullís could just “kiss my ass” could have formed the basis for the discharge, because Marshall testified that both the allegation that Wood had left work without permission and his use of foul and inappropriate language in reference to Tullís that morning were equally considered in his decision to discharge Wood.

Black Creek argues secondly that Wood presented no evidence indicating that the stated basis for discharge — the use of inappropriate and foul language in reference to a supervisory or managerial employee in the workplace — had been applied in a discriminatory manner to employees who had made workers’ compensation claims against it. Wood did testify that he had heard foul language in the workplace, and he said that he knew of other employees who had used foul language without suffering discipline. However, Wood refused to give the names of those employees or to testify about the substance of the alleged incidents. We cannot conclude that Wood’s statement that “other employees did it” is substantial evidence indicating that Black Creek applied its policies in a discriminatory manner, especially in light of the testimony of other witnesses, including Weaver, Minshew, and Robertson, indicating that such language was not acceptable at Black Creek and that the use of such language was uncommon.

Black Creek also argues that the stated basis of Wood’s discharge — his use of inappropriate and foul language in reference to a supervisory or managerial employee— does not conflict with its company policy. The handbook indicated that the use of inappropriate language can be basis for disciplinary action, up to and including discharge. Nothing in the handbook indicates that Black Creek had a progressive discipline policy; in fact, Tullís specifically testified that the company had no such policy. Wood presented no evidence to the contrary.

Finally, Black Creek argues that it never disavowed the stated reason for Wood’s discharge. Wood, however, points to Tullis’s insistence that he voluntarily quit his employment and that he was not discharged because of his use of foul language. Notably, the record contains several indications that Marshall and not Tullís was the final decision-maker regarding Wood’s employment status. Although Tullís discussed with Marshall the fact that Wood left work without permission and although she indicated on Wood’s time card that he voluntarily quit, Marshall indicated that both Wood’s leaving work without permission and his use of foul language on June 20, 2000, equally formed the basis for his decision to discharge Wood on that day. Tullís further testified that, had Wood not been considered to have voluntarily quit, a fact she believed prevented the need to discharge Wood, he would have been discharged because of his conduct and use of foul language on June 20, 2000. A careful review of this testimony reveals no disavowal of the reasons for Wood’s discharge but a determination that both Wood’s actions in leaving work without permission and his use of foul and inappropriate language in reference to Tullís were bases considered by both Tullís and the ultimate decision-maker, Marshall, when the decision was being made. See Blue Circle Cement, Inc. v. Phillips, 989 So.2d 1025, 1037-38 (Ala.2007) (discussing testimony that a discharged employee had “quit” or “self-terminated” his employment and determining that, based on a view of all the evidence, the decision-makers, in using those terms, had not disavowed the stated basis for discharge).

We conclude that Black Creek has presented undisputed evidence of a legitimate reason for Wood’s discharge — that he used foul and inappropriate language in reference to a supervisory or managerial employee. Because Black Creek’s advanced reason is legitimate, Wood failed to present substantial evidence indicating that he was discharged solely for filing a workers’ compensation claim, as he was required to do to recover under Ala.Code 1975, § 25-5-11.1. We therefore reverse the trial court’s denial of Black Creek’s motion for a JML at the close of all the evidence, and we remand this case for the trial court to enter a JML in favor of Black Creek. Because of our reversal of the trial court’s denial of Black Creek’s motion for a JML, we pretermit discussion of the remaining issues raised on appeal by Black Creek. See Favorite Market Store v. Waldrop, 924 So.2d 719, 723 (Ala.Civ.App.2005) (stating that this court would pretermit discussion of further issues in light of the dispositive nature of another issue).

APPLICATION OVERRULED; OPINION OF JULY 31, 2009, WITHDRAWN; OPINION SUBSTITUTED; REVERSED AND REMANDED WITH INSTRUCTIONS.

PITTMAN, J., concurs.

THOMPSON, P.J., concurs in the result, without writing.

BRYAN and MOORE, JJ., dissent, without writings.

      . Weaver and Marshall both admitted that some use of foul language likely occurred in the shop portion of the plant. However, neither man testified that such language had been directed at or in reference to a supervisory or managerial employee, a fact that Marshall said he had relied upon in determining that Wood’s use of foul language merited a discharge.


source: Caselaw Access Project

author: WOODALL, Justice.

license: Public Domain

text:
    Ex parte Ray Keith WOOD. (In re Black Creek, Inc. v. Ray Keith Wood).
    1090877.
    Supreme Court of Alabama.
    Oct. 29, 2010.
    Rehearing Denied Jan. 14, 2011.

      William S. Halsey III, Birmingham; and Timothy A. Hughes, Birmingham, for petitioner.
    Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for respondent.
   WOODALL, Justice.

As he describes it, Ray Keith Wood pulled a muscle loose in his left forearm while working as a machinist for Black Creek, Inc., in February 2000. Black Creek’s workers’ compensation insurance carrier authorized surgery on Wood’s forearm. The surgery was performed on May 5, 2000. Wood returned to work on June 12, 2000, having been released by his surgeon to do only right-handed work; his left arm was in a brace.

During his first week back at work, Wood had three physical-therapy appointments. His time card indicated that he worked his full shift on June 12 before leaving for his appointment but that he left work an hour and a half early on June 15 and June 16 to go to physical therapy. Melanie Tullis, Black Creek’s human-resources manager, wrote up a disciplinary warning, citing Wood’s alleged failure to follow Black Creek’s policy that required employees to attempt to schedule their medical appointments at the beginning of, near the end of, or after their shifts. The disciplinary warning also warned that Wood was required to notify Tullis or his supervisor if he had to leave early to attend a medical appointment. This disciplinary warning was never given to Wood.

On June 19, 2000, Wood complained to his doctor that his light-duty job was causing pain in his right arm. The doctor gave Wood a written excuse for missing work on June 19, requesting in it that Black Creek “ease up” on the work being assigned to Wood. Tullis testified that Wood had told his supervisor that he would telephone her after his appointment on June 19 if he would not be returning to work that day. When Wood did not return to work or telephone his supervisor, Tullis wrote up a second disciplinary warning. This second warning, like the first, was never given to Wood.

On June 20, 2000, Wood arrived at work shortly before 7:00 a.m. for his scheduled shift. He testified that he was in a lot of pain and that the pain limited his use of both arms. Wood testified that he went to the front office and spoke to Daryl Weaver, Black Creek’s president. Wood said that he told Weaver that both his arms hurt and that he needed to see the doctor again. According to Wood, Weaver told him to “do what you gotta do” and to tell Tullis.

Wood testified that, after speaking with Weaver, he approached Tullís, who told him that she did not have time to talk to him. Wood said that he told Tullís that he needed to go back to the doctor but that she told him that she did not have time to “fool with [him] right now.” Tullís testified that she had been conducting an orientation that morning for two new employees and had not had time to talk to Wood.

Both Wood and Tullís testified that Wood was agitated by Tullis’s response. Tullís testified that, as she walked away, she heard Wood say something. Two other Black Creek employees, DeLynn Min-shew and Byron Pledger, testified that they overheard Wood say: “She can just kiss my ass.” Wood admitted making the comment, but he testified that he “muttered [it] under his breath” after Tullís had walked away and that the remark was not directed at anyone. Minshew testified that Wood made the comment as he was “going out [of the office] into the shop” and as Tullís was walking down the hallway.

Wood testified that, after leaving the front office, he clocked out at 8:00 a.m. to go to the doctor. George Robertson, a supervisor at the plant, testified that he heard Wood say: “I’m leaving, I am going home before I slap that bitch, if that workmen’s comp lady don’t have time to talk to me, I’m going to the house.” Wood denied saying that he would slap Tullís.

Tullís testified that, sometime during the morning of June 20, she learned of the statements Wood had allegedly made and she learned that Wood had left work early. She notified Tommy Marshall, the plant manager, that Wood had left early. Marshall testified that he asked Tullís and Wood’s supervisor whether Wood had received permission to leave work. Tullís testified that Wood had not asked her for permission to leave nor informed her that he needed to return to the doctor. Dorothy Willingham, Wood’s supervisor, also testified that Wood had not asked her for permission to leave work.

Marshall testified that he did not hear Wood make the allegedly inappropriate comments regarding Tullís but that he had received and reviewed written statements from Tullís, Minshew, Pledger, and Robertson. Marshall testified that Wood’s decision to leave work early on June 20 without permission and his comments regarding Tullís, considered together, formed the basis of Marshall’s decision to terminate Wood’s employment. On June 20, Marshall spoke to Wood by telephone and informed him that his employment with Black Creek had been terminated because he had left work early that day without permission.

In August 2000, Wood sued Black Creek, seeking worker’s compensation benefits and alleging that Black Creek had discharged him in retaliation for his filing a worker’s compensation claim. See § 25-5-11.1, AIa.Code 1975 (“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover worker’s compensation benefits .... ”). In February 2001, Wood’s worker’s compensation claim and retaliatory-discharge claim were severed, and the worker’s compensation claim was eventually settled. In December 2007 and January 2008, the trial court, sitting without a jury, heard testimony regarding Wood’s retaliatory-discharge claim.

At the close of Wood’s evidence, and again at the close of all the evidence, Black Creek filed what it styled as a motion to dismiss or, in the alternative, a motion for a judgment as a matter of law (“JML”). The trial court denied the motions, and, on May 25, 2008, it entered a judgment in Wood’s favor, awarding him $50,000 in damages. The trial court later amended its judgment to specify that ‘Wood had proven a prima facie case of retaliatory discharge and that the stated reason for his discharge was pretextual and stating that Wood was awarded $20,000 in back wages and $30,000 for mental anguish.” Black Creek, Inc. v. Wood, 69 So.3d 156, 163 (Ala.Civ.App. 2010). Black Creek appealed to the Court of Civil Appeals.

On July 31, 2009, the Court of Civil Appeals issued a plurality opinion, in which the court reversed the trial court’s judgment. Wood applied for a rehearing. On March 12, 2010, the Court of Civil Appeals overruled Wood’s application for a rehearing but withdrew its original opinion and substituted a new one, also a plurality decision. In the new opinion, the Court of Civil Appeals reversed the decision of the trial court and remanded the case with instructions for the trial court to enter a judgment in Black Creek’s favor. Wood, 69 So.3d at 165-66.

Wood petitioned this Court for certiorari review of the Court of Civil Appeals’ judgment. He argued, pursuant to Rule 39(a)(1)(D), Ala. RApp. P., that the Court of Civil Appeals’ decision conflicts with prior caselaw from this Court. This Court granted certiorari review to address the alleged conflicts. We reverse and remand.

Analysis

In Alabama Power Co. v. Aldridge, 854 So.2d 554, 563 (Ala.2002), this Court stated:

“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.”

Once a plaintiff establishes a prima facie case of retaliatory discharge, “ ‘[t]he burden ... then shift[s] to the defendant employer to come forward with evidence that the employee was terminated for a legitimate reason, whereupon the employee must prove that the reason given by the employer was not true but a pretext for an otherwise impermissible termination.’ ” Culbreth v. Woodham Plumbing Co., 599 So.2d 1120, 1122 (Ala.1992) (quoting Twilley v. Daubert Coated Prods., Inc., 536 So.2d 1364, 1369 (Ala.1988)).

“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.”

Aldridge, 854 So.2d at 568.

Black Creek has argued that Wood’s employment was terminated because (1) he voluntarily quit on June 20 by leaving work early without permission, and (2) his statements regarding Tullís — that he would “slap that bitch” and that “[s]he can kiss my ass” — violated company policies against the use of inappropriate language and threatening or insubordinate behavior. In the opinion below, a plurality of the Court of Civil Appeals stated:

“Black Creek points out that, even though Wood’s alleged statement regarding slapping Tullís and his allegedly leaving work without permission were sharply disputed below, one other part of Wood’s behavior on June 20, 2000, which also formed part of the basis for Wood’s discharge, was undisputed. Specifically, Black Creek relies on Wood’s admission that he made the statement ‘she can just kiss my ass’ in reference to Tullís after she was unable to speak with him on June 20, 2000. Although Wood argued that the fact that he ‘mumbled’ the comment and did not make it directly to Tullís somehow ameliorated it, Wood admitted that, under the company handbook, the use of foul language was grounds for disciplinary action up to and including discharge. Thus, Black Creek is correct that one set of facts surrounding the stated basis for the discharge is undisputed.”

Wood, 69 So.3d at 164. Thus, the opinion “conclude[d] that Black Creek ha[d] presented undisputed evidence of a legitimate reason for Wood’s discharge — -that he used foul and inappropriate language in reference to a supervisory or managerial employee.” 69 So.3d at 165. The opinion reasoned that “[bjecause Black Creek’s advanced reason is legitimate, Wood failed to present substantial evidence indicating that he was discharged solely for filing a workers’ compensation claim, as he was required to do to recover under Ala. Code 1975, § 25-5-11.1.” 69 So.3d at 165.

Wood has admitted that he made the remark that Tullís could “kiss [his] ass.” For the purposes of our analysis in this case, we will assume that such language is “inappropriate to the workplace” as that phrase is used in Black Creek’s employee handbook and, thus, can provide “evidence that [Wood] was terminated for a legitimate reason.” Culbreth, 599 So.2d at 1122. We must now consider whether Wood has demonstrated “that the reason given by [Black Creek] was not true” but, instead, was “a pretext for an otherwise impermissible termination.” Id.

In this regard, Wood argued in his petition for certiorari review that the Court of Civil Appeals’ decision conflicts with Cul-breth. In Culbreth, Ivy Culbreth filed a worker’s compensation claim after suffering an on-the-job injury that kept him away from work for approximately two weeks. Culbreth testified:

“ ‘I returned to work on November 14, 1989. I carried the doctor’s slip to John Woodham and reported back to work. He said he would have to wait for James Wade to get there. When Mr. Wade got there they went into a private office without me and stayed ten or fifteen minutes. When he returned he told me I did not have a job, that he did not have any work for me and that he had hired three men to replace me and do my job while I was out.’ ”

Culbreth, 599 So.2d at 1122.

This Court concluded that “a jury question is presented as to whether Woodham Plumbing’s asserted reason [was] a legitimate one or only a pretext.” Culbreth, 599 So.2d at 1123. We stated:

“John Woodham’s failure to immediately give [the allegedly legitimate] reason to Culbreth, together with the ‘ten or fifteen minute’ private conference with James Wade, whose position with Wood-ham Plumbing is not disclosed in the record, is sufficient circumstantial evidence from which a jury might be allowed to infer that Woodham Plumbing fabricated the asserted reason.”

Id.

Wood testified that, when Marshall telephoned him on June 20 to inform him that his employment had been terminated, Marshall stated that the reason for his termination was that Wood had left work early that day without permission. According to Wood, no mention was made of any allegedly inappropriate comment Wood made regarding Tullis.

Tullis testified repeatedly that Wood was not terminated or discharged for the use of foul or inappropriate language or for any other reason. Instead, she insisted that he had voluntarily quit by leaving work early without permission. Tullis stated that, if Wood had not left early on June 20, he would have been discharged based on his allegedly inappropriate comments but that, because he did leave early, Wood’s decision to quit voluntarily was “the sole and only basis for his not working [at Black Creek] after June 20.”

Moreover, Marshall testified that, in deciding whether to terminate Wood’s employment, he reviewed the statements of the other Black Creek employees regarding Wood’s allegedly inappropriate comments. However, there was a factual issue as to when, in the course of the relevant events, the statements Marshall reviewed were prepared. Minshew testified that the statements were prepared around lunchtime. On the other hand, Wood testified that Marshall telephoned him to tell him that his employment had been terminated on the morning of June 20 and that during the telephone conversation Marshall did not mention any of Wood’s comments regarding Tullís. The trial court could have inferred from this testimony that Black Creek did not rely on any of Wood’s allegedly inappropriate comments in making its decision to terminate Wood’s employment but, instead, relied on them “after the fact to bolster its [allegedly] pretextual reason,” i.e., that Wood voluntarily quit by leaving work early on June 20 without permission. Flint Constr. Co. v. Hall, 904 So.2d 286, 251 (Ala.2004). In light of the disputed facts concerning the reasons for terminating Wood’s employment,

“[w]e cannot say as a matter of law that the [trial court] could not have concluded that [Black Creek’s] stated reason for [terminating Wood’s employment] was pretextual without impermissibly reweighing the evidence.

Flint Constr. Co., 904 So.2d at 252.

The decision of the Court of Civil Appeals conflicts with prior caselaw, and its judgment is due to be reversed. However, as Black Creek points out, if the Court of Civil Appeals’ decision is reversed, “there are several issues regarding the calculation of damages and award of mental anguish which [were] pretermitted by the Court of Civil Appeals which are due to be considered.” Black Creek’s brief, at 46. Therefore, we must remand the case to the Court of Civil Appeals for consideration of those issues.

Conclusion

The Court of Civil Appeals erred in reversing the trial court’s judgment and instructing the trial court to enter a judgment in Black Creek’s favor. Therefore, we reverse the Court of Civil Appeals’ judgment and remand the case to that court for further proceedings consistent with this opinion.

REVERSED AND REMANDED.

COBB, C.J., and LYONS, STUART, SMITH, BOLIN, PARKER, MURDOCK, and SHAW, JJ., concur.

      . Wood testified that he went to the doctor's office and waited for about an hour before being told that the doctor could not see him that day. Black Creek argued that the doctor’s office had no record of Wood's coming in or trying to make an appointment on June 20.

      . It is not clear from the record when this telephone conversation took place. Wood said that he spoke to Marshall on the morning of June 20, after Woods left the doctor's office. Marshall testified that he reviewed the statements regarding Wood’s comments about Tullís before making his decision to terminate Wood's employment, and Minshew testified that the statements were prepared around lunchtime on June 20.

      . In an action tried upon the facts without a jury, such a motion is properly characterized as a motion for a judgment on partial findings by the trial court. See Rule 52(c), Ala. R. Civ. P. Ordinarily, the standard of review applicable to rulings on such a motion is the ore terms standard. Burkes Mech., Inc. v. Ft. James-Pennington, Inc., 908 So.2d 905, 910 (Ala.2004).

      . More specifically, Black Creek has argued that Wood’s statements violated the following provisions of its employee handbook:
      "Failure to observe established rales and practices can lead to disciplinary action including formal warnings, suspension, probation, and discharge. The following is a noninclusive list of misconduct that may lead to immediate adverse personnel action.

      "3. Language or actions which are inappropriate to the workplace....

      "5. Threatening, assaulting, or abusing any employee, customer, or company visitor.

      "14. Insubordination, including refusal to follow work directions.”

      . The plurality opinion of the Court of Civil Appeals discounts Tullis’s testimony regarding the reason for the termination of Wood's employment on the basis that Marshall, not Tullis, was the ultimate decision maker regarding Wood’s employment. However, this fact, by itself, does not negate the relevance of her testimony regarding the reason that Wood’s employment was terminated. Black Creek does not argue that Tullis’s testimony was inadmissible or cite any authority indicating that the trial court could not consider her testimony in determining whether Black Creek’s proffered reasons for terminating Wood's employment were pretextual. Moreover, there is evidence indicating that Tullis was involved in the decision-making process. The record indicates that Tullis informed Marshall that Wood had left work early on June 20 without permission, that she had written on Wood’s time card for that day that he had voluntarily quit, and that she was in Marshall’s office when Marshall telephoned Wood to tell him that his employment had been terminated.


author: THOMAS, Judge. MOORE, Judge,

text:
    BLACK CREEK, INC. v. Ray Keith WOOD.
    2071076.
    Court of Civil Appeals of Alabama.
    March 25, 2011.
    Joshua B. Sullivan of Henslee, Robertson, Strawn & Sullivan, LLC, Gadsden, for appellant.
    William S. Halsey III, Birmingham; and Timothy A. Hughes, Birmingham, for ap-pellee.
   On Remand from the Alabama Supreme Court

THOMAS, Judge.

AFFIRMED. NO OPINION.

See Rule 53(a)(1) and (a)(2)(F), Ala. R.App. P.; Terry A. Moore, Alabama Workers’ Compensation § 20:47 (1998); Ex parte Wood, 69 So.3d 166 (Ala.2010); Weeks v. Herlong, 951 So.2d 670, 677 (Ala. 2006); Robbins v. Sanders, 927 So.2d 777, 785 (Ala.2005); Ex parte Fort James Operating Co., 895 So.2d 294, 297 (Ala.2004); Mobile Infirmary Med. Ctr. v. Hodgen, 884 So.2d 801, 808 (Ala.2003); Bleier v. Wellington Sears Co., 757 So.2d 1163, 1171 (Ala.2000); Motion Indus., Inc. v. Pate, 678 So.2d 724, 733 (Ala.1996); and Montgomery Coca-Cola Bottling Co. v. Golson, 725 So.2d 996, 1000 (Ala.Civ.App.1998).

THOMPSON, P.J., and PITTMAN and BRYAN, JJ., concur.

MOORE, J., concurs in the result, with writing.

MOORE, Judge,

concurring in the result.

Following remand from the Alabama Supreme Court, Ex parte Wood, 69 So.3d 166 (Ala.2010), this court, in a no-opinion order of affirmance, affirms the judgment of the Etowah Circuit Court (“the trial court”) in regard to its award of $50,000 in damages to Ray Keith Wood in his action against Black Creek, Inc., under § 25-5-11.1, Ala. Code 1975. For the reasons expressed below, I concur in the result to affirm the trial court’s judgment.

The trial court, which tried the case without a jury, found that Black Creek had terminated Wood’s employment based solely on his having filed a workers’ compensation claim, in violation of § 25-5-11.1, and it awarded Wood $50,000 in damages. In response to a postjudgment motion filed by Black Creek, the trial court determined that $30,000 of the award constituted damages for mental anguish and that $20,000 represented damages for past lost wages. On appeal, Black Creek argues that the evidence does not support a damages award of $30,000 for mental anguish. Black Creek also argues that the trial court erred in awarding Wood any lost wages because, it says, Wood was unable to work following the termination of his employment and Wood received Social Security and workers’ compensation disability benefits that offset any loss.

I. Mental-Anguish Damages

I believe that Black Creek properly preserved its sufficiency-of-the-evidence argument in regard to the award of damages for mental anguish. By filing a post-judgment motion directed toward the damages award, and by refocusing the trial court on that issue to the extent the trial court apportioned the general damages it had originally awarded, Black Creek essentially provided the trial court “the additional opportunity to reconsider the evidence and [to] discover and correct any error in judgment which [it] may have made upon initial review.” Ex parte Vaughn, 495 So.2d 83, 87 (Ala.1986). Although the trial court did not enter specific findings of fact on the issue, that procedure adequately substituted for the entry of specific findings of fact on the issue so that it may be said that the trial court reconsidered the evidence supporting the damages awarded for mental anguish and ruled adversely to Black Creek by finding that the evidence sufficiently supported an award to Wood of $30,000 in mental-anguish damages. Accordingly, this court may review that ruling under Rule 52(b), Ala. R. Civ. P. (‘When findings of fact are made in actions tried by the court without a jury, the question of the sufficiency of the evidence to support the findings may thereafter be raised whether or not the party raising the question has made in the court an objection to such findings or has made a motion to amend them or a motion for judgment or a motion for a new trial.”).

I also believe that, based on Montgomery Coca-Cola Bottling Co. v. Golson, 725 So.2d 996, 1000 (Ala.Civ.App.1998), the evidence supports the $80,000 award for mental-anguish damages. In Golson, this court affirmed a $75,000 mental-anguish damages award based on evidence indicating that, “because of the wrongful termination, [Golson] became depressed, he had problems obtaining gainful employment, he could not pay his bills, his car was repossessed, he was evicted from his apartment, and he and his wife divorced.” Id. The facts in the present case relating to Wood’s mental anguish closely parallel those in Golson. Wood testified that he experienced serious financial problems following the June 20, 2000, wrongful termination of his employment that caused him to seek psychiatric care and to obtain medication for depression and that led to marital strife that eventually contributed to his 2002 divorce from his wife. Although Wood could not recall the names of his psychiatric providers, the trial court obviously was convinced of the credibility of Wood’s emotional suffering, and, applying the ore tenus rule, this court cannot overturn the award on that ground. See Slack v. Stream, 988 So.2d 516, 531-32 (Ala. 2008). Given the lack of any “ ‘fixed standard for ascertaining the amount of compensatory damages that may be awarded for emotional distress,’ ” Golson, 725 So.2d at 1000 (quoting First Commercial Bank v. Spivey, 694 So.2d 1316, 1326 (Ala.1997)), and the discretion afforded the trial court in fixing those damages, id., I find no basis for reversing the judgment awarding Wood $30,000 in mental-anguish damages.

II. Lost Wages

In Bleier v. Wellington Sears Co., 757 So.2d 1163 (Ala.2000), the supreme court specifically held that “[a]n employee who is discharged solely for filing a workers’ compensation claim, but who is ... unable to return to work, cannot recover damages for lost wages.” 757 So.2d at 1172. Black Creek initially maintains that Wood should not have received any lost-wages damages because he testified that he was unable to work after he lost his employment at Black Creek.

Wood’s testimony is not as clear-cut as Black Creek maintains, however. Wood did state that he was physically unable to work following his departure from Black Creek, but he also clarified at one point in his testimony that he could have continued performing the light-duty job Black Creek had provided for him. The evidence regarding that job showed that, as part of its workers’ compensation program, Black Creek assigned injured employees to a job sorting small parts that would later be assembled by others. The job was designed to be exceedingly sedentary in nature, as several of Black Creek’s witnesses testified. Wood claimed that he was asked to perform heavier physical activities outside the light-duty job description, prompting him to seek medical assistance on June 19, 2000. Black Creek’s witnesses disputed that the job required the heavier physical activities Wood described and indicated that, in any event, they would have modified the job to exclude those activities in order to allow Wood to maintain the job. Thus, the trial court had before it sufficient evidence indicating that Wood retained some limited ability to earn wages in that light-duty position.

On appeal, Black Creek asserts that that evidence should not be considered because, it says, Wood is estopped from asserting an ability to work by his application for, and his receipt of, Social Security disability benefits. See Consolidated Stores, Inc. v. Gargis, 686 So.2d 268, 274 (Ala.Civ.App. 1996), cert. denied, Ex parte Gargis, 686 So.2d 278 (Ala.1996), overruled on other grounds, Bleier, supra. Black Creek acknowledges that estoppel is an affirmative defense that should be pleaded, see Rule 8(c), Ala. R. Civ. P., and that it failed to plead the defense, which ordinarily constitutes a waiver. See Ex parte Luverne Geriatric Ctr., Inc., 480 So.2d 562, 568 (Ala.1985). Black Creek nevertheless argues that the issue was tried by the implied consent of the parties because, it says, some of Wood’s testimony, which was elicited without objection, would be relevant toward proving the defense, and, therefore, it asserts that the pleadings should be amended to conform to the evidence under Rule 15(b), Ala. R. Civ. P. However, the evidence relating to Social Security disability benefits was directed solely toward the issue whether those benefits should offset any lost wages, an issue that both parties agreed would be decided by the trial court, not whether those benefits should preclude any lost wages entirely. Although it is true that the evidence would also have been relevant to an estop-pel defense, Wood could not have known that he was trying that issue as well as the offset issue so as to trigger the operation of Rule 15(b). See Ex parte Luverne Geriatric Ctr., Inc., 480 So.2d at 569; see also 1 Champ Lyons, Jr., & Ally W. Howell, Alabama Rules of Civil Procedure Annotated § 8.9 (4th ed. 2004) (“Estoppel is one of the defenses required under Ala. R. Civ. P. Rule 8(c) to be pleaded affirmatively and, if it is not so pleaded, a party asserting estoppel cannot avail himself of the doctrine even though it appears in evidence.” (citing Ex parte Luverne Geriatric Ctr., Inc., supra; Hendricks v. Blake, 291 Ala. 575, 580-81, 285 So.2d 82, 86-87 (1973); and Carter v. Smith, 402 So.2d 1017, 1019 (Ala.Civ.App.1981))). Hence, the trial court did not err in considering the evidence that Wood could have performed the light-duty position.

The parties stipulated that Wood was earning $377.52 per week at the time Black Creek terminated his employment. The evidence does not indicate when Wood reached maximum medical improvement for his left-arm injury or when his surgeon removed his temporary work restrictions, if ever, so it is impossible to discern if and when Wood lost his eligibility for the light-duty position. However, the parties essentially agreed at the trial-court level that any claim for lost wages would extend to the point that Black Creek closed the plant where Wood had worked, which was at some point between the summer of 2001 and the beginning of 2002, the exact date not being identified in the record. Thus, the trial court reasonably could have determined that Wood lost wages in a range from between $19,631.04 and $29,446.56. An award of $20,000 would actually be at the lower end of that spectrum.

The trial court properly refused to offset Wood’s Social Security disability benefits against what it awarded Wood for lost wages. The evidence in the record indicates that Wood applied for those benefits in October 2003 and that he did not begin receiving them until September 2006. Wood and his children did receive a $20,000 lump-sum award for past benefits, but, under Social Security law and regulations, those benefits were for the 12-month period immediately preceding the successful application. See 42 U.S.C. § 423(b) and 20 C.F.R. § 404.621. In this case, although the onset of the disability was considered to be February 2000, Wood received Social Security disability benefits only from October 2002 forward; Wood did not receive any Social Security disability benefits for the period he was awarded lost wages. Hence, the trial court did not err in failing to offset the Social Security disability benefits against what it awarded Wood for lost wages. See Sloan v. Hartford Life & Acc. Ins. Co., 475 F.3d 999, 1006-07 (8th Cir.2007).

For much the same reason, the trial court did not err in failing to offset the amounts Wood received from a February 2003 workers’ compensation settlement. Although it is true that an employee cannot recover both workers’ compensation benefits for lost wages due to physical inability to work and compensatory damages for those same lost wages in a retaliatory-discharge action, Motion Indus., Inc. v. Pate, 678 So.2d 724, 733 (Ala.1996) (citing Continental Eagle Corp. v. Mokrzycki, 611 So.2d 313, 320 (Ala.1992)), the burden remains on the employer to prove such overlapping compensation by a preponderance of the evidence. See, e.g., Ex parte Fort James Operating Co., 895 So.2d 294, 297 (Ala.2004) (holding that an employer asserting the affirmative defense of setoff bears the burden of proof on the issue and that the proper burden of proof for the affirmative defense of setoff is a preponderance of the evidence). In this case, Black Creek admittedly failed to offer evidence as to what portion, if any, of the $20,000 workers’ compensation settlement related to wages lost by Wood during the relevant period. Without such evidence, the trial court had no basis for offsetting any part of the workers’ compensation settlement against its award of lost wages to Wood, and, therefore, I believe that its award of lost wages is due to be affirmed.


author: BRYAN, Judge. THOMAS, Judge,

text:
    Larry Eugene LEETH and Edna Lee Washington Leeth v. J & J PROPERTIES.
    2090758.
    Court of Civil Appeals of Alabama.
    Nov. 5, 2010.
    As Modified on Denial of Rehearing March 18, 2011.

      Larry Eugene Leeth and Edna Lee Washington Leeth, pro se.
    Mitchell K. Shelly and Zachary L. Bur-green, Athens, for appellee.
   BRYAN, Judge.

Larry Eugene Leeth and Edna Lee Washington Leeth appeal from a summary judgment entered in favor of J & J Properties (“J & J”). We affirm.

In 2005, the Leeths entered into a six-month lease agreement with J & J to rent an apartment (“the apartment”) owned by J & J. Upon the expiration of the six-month lease period, the Leeths began renting the apartment on a month-to-month basis. On August 26, 2009, J & J gave the Leeths 30 days’ written notice of the termination of their month-to-month tenancy. After the Leeths failed to vacate the apartment within 30 days, J & J filed an unlawful-detainer action in the Limestone District Court. The Leeths, acting pro se, filed a counterclaim alleging a retaliatory eviction. After a trial, the district court entered a judgment in favor of J & J on its unlawful-detainer claim and on the Leeths’ retaliatory-eviction counterclaim.

The Leeths appealed the district court’s judgment to the Limestone Circuit Court. The circuit court severed the unlawful-detainer claim from the Leeths’ retaliatory-eviction counterclaim; in substance, that counterclaim appeared to be brought under § 35-9A-501, Ala.Code 1975, which prohibits certain retaliatory conduct by landlords. Following a bench trial on the unlawful-detainer claim, the circuit court entered a judgment on that claim in favor of J & J. The Leeths filed amended counterclaims alleging “retaliatory eviction/gross negligence,” “noncompliance by [J & J],” “retaliation/discrimination,” “bad faith noncompliance and retaliation,” and “defamation of character.” J & J filed a motion for a summary judgment, which the circuit court granted following a hearing. After the denial of their postjudgment motion, the Leeths appealed to this court.

“In reviewing the disposition of a motion for summary judgment, ‘we utilize the same standard as the trial court in determining whether the evidence before [it] made out a genuine issue of material fact,’ Bussey v. John Deere Co., 531 So.2d 860, 862 (Ala.1988), and whether the movant was ‘entitled to a judgment as a matter of law.’ Wright v. Wright, 654 So.2d 542 (Ala.1995); Rule 56(c), Ala. R. Civ. P. When the movant makes a prima facie showing that there is no genuine issue of material fact, the burden shifts to the nonmovant to present substantial evidence creating such an issue. Bass v. SouthTrust Bank of Baldwin County, 538 So.2d 794, 797-98 (Ala.1989). Evidence is ‘substantial’ if it is 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.’ Wright, 654 So.2d at 543 (quoting West v. Founders Life Assurance Co. of Florida, 547 So.2d 870, 871 (Ala. 1989)). Our review is further subject to the caveat that this Court must review the record in a light most favorable to the nonmovant and must resolve all reasonable doubts against the movant. Wilma Corp. v. Fleming Foods of Alabama, Inc., 613 So.2d 359 (Ala.1993); Hanners v. Balfour Guthrie, Inc., 564 So.2d 412, 413 (Ala.1990).”

Hobson v. American Cast Iron Pipe Co., 690 So.2d 341, 344 (Ala.1997).

On appeal, the Leeths first argue that the circuit court erred in entering a summary judgment on certain of their counterclaims because, the Leeths say, J & J failed to address those counterclaims in its summary-judgment motion. The Leeths stated several purported counterclaims; some of those counterclaims were not addressed in J & J’s summary-judgment motion. However, the Leeths did not object in their postjudgment motion to the entry of a summary judgment as to the counterclaims that were not addressed by J& J.

In Employees of the Montgomery County Sheriff’s Department v. Marshall, 893 So.2d 326 (Ala.2004), the plaintiffs sued Sheriff D.T. Marshall in both his official and his individual capacities. Sheriff Marshall moved for a summary judgment in his official capacity only. However, the trial court entered a summary judgment in favor of Sheriff Marshall in both his official capacity and his individual capacity. The plaintiffs then appealed to the supreme court. With respect to the summary judgment in favor of Sheriff Marshall in his individual capacity, the supreme court stated:

“Since the sheriffs motion did not challenge the plaintiffs’ claims against the sheriff in his individual capacity, the motion did not meet the initial burden of the sheriff in his individual capacity, that is, ‘ “the burden of production, i.e., the burden of making a prima facie showing that he is entitled to summary judgment.” ’ Ex parte General Motors Corp., 769 So.2d 903, 909 (Ala.1999) (quoting Berner v. Caldwell, 543 So.2d 686, 691 (Ala.1989) (Houston, J., concurring specially)). However, the record before us does not reveal whether the plaintiffs objected to the trial court in a timely postjudgment Rule 59(e), Ala. R. Civ. P., motion that the trial court erred in failing to limit the summary judgment to the claims against the sheriff in his official capacity, see Hatch v. Health-Mar, Inc., 686 So.2d 1132, 1132 (Ala.1996) (‘[I]t was error for the trial court to enter a summary judgment as to all of [the plaintiffs] claims, because one claim ... was not before the trial court on the summary judgment motion’), and Henson v. Mobile Infirmary Ass’n, 646 So.2d 559, 562 (Ala.1994) (‘[W]e observe at the outset that the trial court could not properly enter the summary judgment as to all of [the plaintiffs] claims. Counts one and two ... were not before the trial court on the [defendant’s] motion’). Such a Rule 59(e) motion would have been necessary to preserve such an objection for an appeal ‘because this issue [did] not involve a question of law that ha[d] been the subject of a previous objection and ruling. McKenzie v. Killian, 887 So.2d 861, 865 (Ala.2004).”

893 So.2d at 330-31 (final emphasis added). Accordingly, in this case, because the Leeths did not object to the entry of the summary judgment on the counterclaims unaddressed by J & J in its summary-judgment motion, they did not preserve the issue of the propriety of that ruling for our review.

In its summary-judgment motion, J & J did thoroughly address the Leeths’ retaliatory-eviction counterclaim brought under § 35-9A-501(a)(l), Ala.Code 1975. That section provides, in pertinent part:

“(a) Except as provided in this section, a landlord may not retaliate ... by bringing or threatening to bring an action for possession because:
“(1) the tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety.”

In their retaliatory-eviction counterclaim, the Leeths alleged that the apartment had “toxic mold” and that a faulty ventilation system had allowed “cigarette and other secondhand smoke” from other apartments into the apartment; these allegations appear to be the purported “violations” under § 35-9A-501(a). In its summary-judgment motion, J & J asserted, among other things, that the Leeths could not establish that they had complained of any violation under § 35-9A-501(a)(l) to “a governmental agency charged with the responsibility for enforcement of a building or housing code.” J & J also asserted that the Leeths could not establish that J & J had any knowledge of the alleged complaints made by the Leeths to the appropriate governmental agencies.

The Leeths argue that the record on appeal contains substantial evidence demonstrating that they had complained of the alleged mold and the allegedly faulty ventilation system to the appropriate governmental agencies, pursuant to § 35-9A-501(a)(1). In support of their argument, the Leeths cite evidence in the record indicating that they complained about the condition of the apartment to the Better Business Bureau, the Office of the Attorney General, the mayor’s office of the City of Athens, and the “fire department.”

The Better Business Bureau is not a “a governmental agency charged with responsibility for enforcement of a building or housing code”; therefore, the Leeths’ complaints to the Better Business Bureau are irrelevant in this case. The record contains some documentary evidence indicating that the Leeths complained to the Office of the Attorney General about the apartment after the eviction proceedings began. Obviously, those complaints filed after the eviction could not serve as the basis of a retaliatory eviction. However, Mrs. Leeth testified by deposition that she had also complained to the Office of the Attorney General before the eviction proceedings began. However, there is no evidence indicating that J & J had any knowledge of those alleged complaints made to the Office of the Attorney General. Clearly, J & J could not retaliate in response to a complaint of which it had no knowledge. Mrs. Leeth further testified by deposition that she had complained about the apartment to the mayor’s office before the eviction proceedings began. Mrs. Leeth also testified that she had informed J & J that she had complained to the mayor’s office. However, evidence indicating that Mrs. Leeth had simply complained to the may- or’s office is not sufficient evidence to demonstrate that she “complained to a governmental agency charged with responsibility for enforcement of a building or housing code.”

Mrs. Leeth also testified that she had complained to the fire department about conditions in the apartment. However, the record does not indicate that J & J had knowledge of Mrs. Leeths’s alleged complaint to the fire department. Mrs. Leeth testified that she “was sure [the fire department] did a report because [employees of the fire department] talked to [J & J’s office manager].” However, Mrs. Leeth’s statement that employees of the fire department spoke with J & J’s office manager does not indicate the substance of that alleged conversation; the content of that alleged conversation is unknown. “ ‘[EJvidence which affords nothing more than mere speculation, conjecture, or guess is wholly insufficient to warrant submission of the case to the jury.’ ” Turner v. Azalea Box Co., 508 So.2d 253, 254 (Ala.1987) (quoting Roberts v. Carroll, 377 So.2d 944, 946 (Ala.1979)). Therefore, the Leeths did not establish that J & J had knowledge of the alleged complaint to the fire department.

The evidence in the record indicates that the Leeths failed to satisfy the requirements of § 35-9A-501(a)(l). Therefore, the Leeths have failed to establish that the circuit court erred in entering a summary judgment regarding the retaliatory-eviction counterclaim brought under that section.

The Leeths also contend that alleged “damages to the Leethsf] health [are] for present and future damages.” It is unclear what argument for reversal the Leeths are attempting to make. The Leeths cite authority that appears to have no legal relevance to the stated issue. An appellate court will not “create legal arguments for a party based on undelineated general propositions unsupported by authority or argument.” Spradlin v. Spradlin, 601 So.2d 76, 79 (Ala.1992). Accordingly, we do not address this issue further.

The Leeths also argue that the circuit court erred because, they say, the circuit court continued the summary-judgment hearing without notifying them. The record indicates that the summary-judgment hearing took place on April 29, 2010, and that the Leeths had notice of that hearing. However, the Leeths, who were proceeding pro se, did not attend that hearing. The Leeths now mistakenly contend that the circuit court did not hold a hearing on April 29, 2010, that the circuit court rescheduled the summary-judgment hearing for a date after April 29, 2010, and that they were not notified of the new hearing date. However, the record simply does not support those allegations. Therefore, the Leeths’ argument fails.

Based on the foregoing, the circuit court’s summary judgment is affirmed.

AFFIRMED.

THOMPSON, P.J., and PITTMAN, J., concur.

THOMAS, J., concurs in part and concurs in the result, with writing.

MOORE, J., concurs in the result, without writing.

THOMAS, Judge,

concurring in part and concurring in the result.

I agree that the summary judgment in favor of J & J Properties (“J & J”) should be affirmed. I concur in the main opinion insofar as it concludes that the Leeths waived any challenge to the summary judgment on their counterclaims other than their retaliatory-eviction counterclaim. However, because my review of the record and of the applicable statutory provisions convinces me that the Leeths failed to present substantial evidence to overcome J & J’s motion for a summary judgment on the Leeths’ retaliatory-eviction counterclaim, I concur in the result reached in the main as to the propriety of the summary judgment on the Leeths’ retaliatory-eviction counterclaim.

The Leeths relied on Ala.Code 1975, § 35-9A-501(a)(l) and (2), which prohibit retaliatory conduct by a landlord when a tenant has complained to certain entities about certain deficiencies or problems that affect health and safety. Those subsections read as follows:

“(a) Except as provided in this section, a landlord may not retaliate by discriminatorily increasing rent or decreasing services or by bringing or threatening to bring an action for possession because:
“(1) the tenant has complained to a governmental agency charged with responsibility for enforcement of a building or housing code of a violation applicable to the premises materially affecting health and safety; [or]
“(2) the tenant has complained to the landlord of a violation under Section 35-9A-204.”

Under Ala.Code 1975, § 35-9A-204:

“(a) A landlord shall:
“(1) comply with the requirements of applicable building and housing codes materially affecting health and safety;
“(2) make all repairs and do whatever is necessary to put and keep the premises in a habitable condition;
“(4) maintain in good and safe working order and condition all electrical, plumbing, sanitary, heating, ventilating, air-conditioning, and other facilities and appliances, including elevators, supplied or required to be supplied by the landlord....”

The problems that the Leeths complained of to J & J and the governmental agencies discussed in the main opinion were primarily the presence of allegedly “toxic mold” and alleged problems with either the ventilation system or the structural integrity of the apartment such that the Leeths’ apartment was often faced with an influx of cigarette and other smoke from adjoining apartments. J & J presented evidence in support of its motion for a summary judgment indicating that the apartment did not suffer from any ventilation or structural deficiencies; the Leeths presented no evidence creating a genuine issue of material fact that such deficiencies existed other than testimony from Mrs. Leeth indicating that smoke had entered the apartment. In addition, the Leeths failed to present evidence indicating that their health and safety had been materially affected by the presence of smoke that might have invaded their apartment.

J & J also presented as evidence in support of its summary-judgment motion an affidavit from an inspector stating that no mold was present in the apartment. The Leeths presented evidence in the form of Mrs. Leeth’s deposition testimony indicating that mold was present on certain walls, but the Leeths presented no evidence indicating that the mold Mrs. Leeth saw on the walls was “toxic” other than hearsay testimony that a fireman had indicated to Mrs. Leeth that the mold was “toxic,” and could be causing the Leeths’ health problems. Thus, I conclude that the Leeths failed to present evidence indicating that the possible presence of mold of which the Leeths complained materially affected their health and safety.

For these reasons, I concur in the result reached by the main opinion respecting the Leeths’ retaliatory-eviction claim.

      . In their brief to this court, the Leeths also contend that they complained to the Alabama Department of Environmental Management, “the Bureau of Environmental Services,” and "the Air Quality Control Unit for the State and City of Athens.” However, the record contains no evidence of those alleged complaints.

      . The record does not contain a copy of the alleged report.