author: THOMPSON, Presiding Judge.

text:
    BISHOP STATE COMMUNITY COLLEGE v. Henry R. DOUGLAS.
    2071097.
    Court of Civil Appeals of Alabama.
    May 1, 2009.
    Rehearing Denied July 10, 2009.
    Certiorari Denied Oct. 16, 2009 Alabama Supreme Court 1081414.
    David M. O’Brien and Jeffrey G. Miller of Sirote & Permutt, P.C., Mobile, for appellant.
    Henry H. Caddell of Thiry & Caddell, Mobile; and Sam Heldman of Gardner, Middlebrooks, Gibbons & Hill, P.C., Washington, D.C., for appellee.
   THOMPSON, Presiding Judge.

Bishop State Community College (“Bishop State”) appeals from the order of the Federal Mediation & Conciliation Service hearing officer reinstating Henry R. Douglas as an instructor of food service at Bishop State and awarding him back pay. The order also found that Douglas was to be reprimanded in the form in which Bishop State had previously issued a reprimand to him. The previous reprimand had been based on the same facts as those serving as the basis of this matter. References to subsequent attempts to discipline Douglas for the same conduct were ordered expunged from his personnel file.

Bishop State terminated Douglas’s employment as an instructor after an external audit revealed that he had enrolled in ten courses for which he was also the instructor of record and that he had enrolled as a student in six courses that were taught at the same time he was scheduled to be teaching. Bishop State alleged that Douglas concealed his conduct from school officials, leading it to conclude that Douglas was attempting to obtain an associate’s degree “unscrupulously” and that his conduct involved moral turpitude.

The evidence adduced at the hearing tended to show the following. Bishop State had been offering a commercial-food-service program (“the program”) for a number of years. In 2000, one of the two instructors in the program retired. The program was popular, and the remaining instructor, Herman Packer, sought approval from Bishop State president Dr. Yvonne Kennedy to hire another instructor. Douglas, a prominent executive chef in Mobile, was selected to fill the position in December 2001. However, Douglas’s formal education did not include a degree in food service. Bishop State officials were concerned that Douglas’s lack of sufficient academic hours “in field” would affect the program’s accreditation with the American Culinary Federation. Dr. Harry Holloway, Bishop State’s technical dean, sent a memorandum to the human resources director at Bishop State expressing his concerns about Douglas’s academic credentials and recommending that Douglas “be given a letter of employment explaining that his placement is contingent upon him completing the associate degree” in commercial food service.

Packer testified that he was eager to hire Douglas. He said that when Kennedy was made aware of Douglas’s lack of a degree “in field,” Kennedy told him to hire Douglas without delay and to see that steps were taken to have Douglas earn an associate’s degree in an appropriate field within two years. Douglas was hired as an instructor in the program on February 25, 2002, and reported for work that same day. Douglas testified that, on the day he was hired, he met with Dr. Norman New-berry, director of Bishop State’s Carver campus, where Douglas would be working, and that Holloway joined the meeting via a speaker telephone. Douglas said that at that meeting, he was told for the first time that his degree was in the “wrong field” for academic purposes and that he had to earn an associate’s degree in commercial food service within two to three years so that the program could satisfy accreditation requirements.

Newberry testified that it was safe to assume that Douglas understood that he was required to earn an associate’s degree within two to three years. He also acknowledged that a full-time student in the program would earn an associate’s degree in two years and that Douglas would be expected to work full time while he was earning his degree. Both Newberry and Holloway recognized that the only feasible institution from which Douglas could earn the required degree was Bishop State and that the nearest alternative program was in Gulf Shores, which would require a three-hour round-trip drive from Mobile in addition to time spent in class.

Packer said he could see no way for Douglas to earn the associate’s degree within the time specified unless he pursued an independent course of study. To that end, he and Douglas both testified that, during the times their respective schedules did not require one of them to be in class or in his office, Packer would instruct Douglas in the courses required in the program. Douglas would register for the courses he was taking independently as those courses appeared on Bishop State’s course list, but, according to Douglas and Packer, Douglas was not actually taking those courses at those times. As a result, they said, it appeared that Douglas was enrolled in courses he was teaching or that were being taught by Packer at the same time Douglas was scheduled to be teaching his own courses. There is no dispute that Packer and Douglas did not follow Bishop State’s independent-study policy in having Douglas complete his course work in such a manner.

In January 2007, Bishop State initially disciplined Douglas with a letter of reprimand. Also in January 2007, the Southern Association of Colleges and Schools (“SACS”) placed Bishop State on probation for, among other things, lack of academic integrity. The situation with Douglas was one of the matters cited by SACS in its findings that led to the probation. In April 2007, Kennedy notified Douglas and Packer that she intended to suspend them each for seven days because of their conduct. A conference was scheduled pursuant to the Fair Dismissal Act (“the FDA”), § 36-26-100 et seq., Ala. Code 1975, but it was postponed and was never rescheduled.

Kennedy left her position as president of Bishop State in the summer of 2007, and Dr. James Lowe became interim president of the school on August 1, 2007. Lowe reviewed Douglas’s and Packer’s conduct, determined that heightened discipline was required, and made the decision to terminate their employment. A pretermination conference was held for Douglas on August 29, 2007. Lowe notified Douglas by letter on November 8, 2007, that his employment was being terminated. Douglas timely contested the decision pursuant to the FDA.

The academic hours Douglas received toward his associate’s degree in the program that came about as a result of the conduct for which he was disciplined have been expunged from his record. As the hearing officer noted, this case did not involve the propriety of that action on the part of Bishop State.

In his order, the hearing officer found that when Douglas was recruited to teach in the program, he had no teaching or academic background and had a “lack of sophistication in the academic world.” The hearing officer also found that, in attempting to earn his associate’s degree through the informal “independent-study” plan worked out between him and Packer, the questionable behavior of Douglas — and of Packer — was based on “response to pressure on Packer and Douglas that Douglas’ teaching credentials be up-graded within a relatively short period.” After setting forth extensive findings of fact based on the evidence presented at the FDA hearing, the order reflected that the hearing officer

“finds that it should have been clear to Douglas that representations being made to [Bishop State] regarding his teaching and student activities [for which he was terminated] were not consistent with the facts as he knew them. At the same time, the Hearing Officer finds that Douglas’ participation in the matter for which he was charged was the result of his following the instructions of Packer. The Hearing Officer finds that a combination of reliance on Packer’s position of authority and his own lack of sophistication in the academic world allowed Douglas to be a party to and beneficiary of what has the appearance of a dishonest scheme.
“There is nothing in the record to show an intent on the part of Douglas to defraud the College with respect to class credits, pay for teaching, or tuition credit.”

Based upon his findings, the hearing officer determined that the proper discipline for Douglas in this matter was a reprimand and not the termination of his employment with Bishop State.

The hearing officer noted that the material facts in the case were essentially uncontested by either Bishop State or Douglas and that his primary role was determining the proper disciplinary action to be taken against Douglas. Pursuant to the FDA, the hearing officer “shall determine which of the following actions should be taken relative to the employee: Termination of the employee, a suspension of the employee, with or without pay, a reprimand, other disciplinary action, or no action against the employee.” § 36-26-104(a), Ala.Code 1975.

Bishop State contends that the hearing officer’s decision to reinstate Douglas to his position as instructor was arbitrary and capricious in light of the evidence presented. Specifically, Bishop State contends that the hearing officer’s conclusion that the evidence presented failed to show that Douglas had an intent to defraud Bishop State was clearly erroneous. In making this argument in its appellate brief, Bishop State failed to cite any law, in contravention of Rule 28(a)(10), Ala. R.App. P. However, out of an abundance of caution, we will address the merits of Bishop State’s argument.

“ ‘[T]he decision of the hearing officer shall be affirmed on appeal unless the Court of Civil Appeals finds the decision arbitrary and capricious ....’” Bishop State Cmty. Coll. v. Williams, 4 So.3d 1152, 1157 (Ala.Civ.App.2008) (quoting § 36-26-104(b), Ala.Code 1975). In Bishop State Community College v. Thomas, 13 So.3d 978, 986 (Ala.Civ.App.2008), this court discussed the use of the arbitrary- and-capricious standard of review in an FDA case, explaining that the legislature intended this court to be “extremely deferential” to the hearing officer’s decision. See Ex parte Dunn, 962 So.2d 814, 816 (Ala.2007) (construing arbitrary-and-eapri-cious standard of review mandated by Teacher Tenure Act). In discussing this court’s review of the decision of a hearing officer in an FDA case, the Thomas court quoted our supreme court as follows:

“ ‘[T]he reviewing court may not substitute its judgment for that of the hearing officer.... [W]here “reasonable people could differ as to the wisdom of a hearing officer’s decision[,] ... the decision is not arbitrary.”
“ ‘ “If the decision-maker has ‘ “examined the relevant data and articulated a satisfactory explanation for its action, including a ‘rational connection between the facts found and the choice made,’ ” ’ its decision is not arbitrary. See Alabama Dep’t of Human Res. v. Dye, 921 So.2d [421, 426 (Ala.Civ.App.2005) ] (quoting Prometheus Radio Project v. FCC, 373 F.3d [372, 389 (3d Cir.2004) ] (quoting in turn Burlington Truck Lines, Inc. v.
United States, 371 U.S. 156, 168 (1962))).” ’
“Ex parte Dunn, 962 So.2d at 816-17 (quoting with approval, but reversing on other grounds, Board of Sch. Comm’rs of Mobile County v. Dunn, 962 So.2d 805, 809, 810 (Ala.Civ.App.2006)). Pursuant to the arbitrary-and-capricious standard of review, this court may ‘disagree with the wisdom of the decision, [but] we may not substitute our judgment for that of the hearing officer.’ Ex parte Dunn, 962 So.2d at 823-24.”

Thomas, 13 So.3d at 986.

In this case, the hearing officer’s decision to reprimand Douglas rather than to terminate his employment was based on consideration of the evidence presented. The hearing officer articulated a satisfactory explanation for his decision. We note that the decision to reprimand Douglas was the same discipline that Bishop State initially imposed for Douglas’s conduct. Although this court may have reached a different conclusion than that reached by the hearing officer, we are bound by the decisions of our supreme court, and, following the rationale set forth in the supreme court’s decision in Dunn, we conclude that, based upon the record before us and after studying the hearing officer’s order explaining the rationale for his decision, we cannot say that the hearing officer’s decision to reprimand Douglas and to reinstate his employment with Bishop State was arbitrary and capricious. See Ex parte Dunn, 962 So.2d at 816-17.

Bishop State contends that the hearing officer mistakenly determined that the January 2007 reprimand of Douglas issued by Holloway, Bishop State’s technical dean, was an official reprimand under the FDA. Bishop State argues that the reprimand failed to meet the formal requirements of a disciplinary action under the FDA. It appears to assert that, to the extent that the hearing officer relied upon that “mistaken” finding in reaching his decision, the decision was arbitrary and capricious.

Douglas had sought to have the termination proceedings against him dismissed because, he asserted, Bishop State was estopped from pursuing his dismissal because it had already disciplined him for the same conduct by means of a reprimand. The hearing officer explicitly denied Douglas’s motion to dismiss and decided the case on its merits. The hearing officer conceded that his decision on the merits led “to substantially the same result as would the granting] of the motion [to dismiss].” Nonetheless, as discussed above, the hearing officer explained his decision that a reprimand was the proper discipline to be imposed in this case, the explanation was rational in light of the evidence presented, and, therefore, we cannot say that the decision to reprimand Douglas rather than to terminate his employment was arbitrary and capricious.

In reinstating Douglas, the hearing officer awarded Douglas “back pay from the day on which his compensation was terminated.” Bishop State filed a post-hearing motion seeking clarification as to whether “back pay” included the value of lost health-insurance coverage and whether the award of back pay should be set off by the amount of money Douglas earned while working at another job after his employment with Bishop State had been terminated. Douglas filed a response in which he claimed that he was entitled to the value of his health-insurance coverage and that his back pay could not be set off by the amount he had earned in another job after his employment with Bishop State had been terminated. The hearing officer denied the motion for clarification.

“If there is uncertainty in a judgment the court must construe it so as to express the intent of the trial judge, which intent can be derived from the provisions of the judgment.” Erbe v. Eady, 406 So.2d 936, 938 (Ala.Civ.App.1981) (citing Price v. Price, 360 So.2d 340 (Ala.Civ.App.1978)). In this case, however, the issue of what constituted back pay was not brought up by the parties until after the hearing officer had issued his decision, and, thus, none of the provisions in the hearing officer’s order shed light on what the hearing officer contemplated in ordering that Douglas receive “back pay” from the date his employment was terminated. We turn, therefore, to the law controlling the issues raised by Bishop State in its motion for clarification.

Bishop State contends that the hearing officer should have set off Douglas’s award of back pay by the amount he earned while working after his employment had been terminated. This court specifically rejected that argument in State Department of Mental Health & Mental Retardation v. State Personnel Department, 863 So.2d 1118 (Ala.Civ.App.2003). In reaching its holding, this court noted that no state statute or caselaw authorized a setoff of the award of back pay made to a public employee. Id. at 1120. Bishop State has provided this court with no reason to revisit our holding in that case.

As to the issue whether Douglas is entitled to recover as part of his back pay the amount Bishop State would have spent on his insurance premiums from the date it terminated his compensation, the FDA does not define the terms “pay” or “back pay.” However, this court has held that “[bjackpay for a reinstated public employee includes the value of fringe benefits that the employee did not receive while she was not at work.” Whitlow v. City of Birmingham, 689 So.2d 107, 109 (Ala.Civ.App.1996); see also Lauderdale County v. Daniels, 431 So.2d 1266 (Ala.1983) (deputy sheriff given back pay, uniform allowance, and annual and sick leave). In Whitlow, a radio dispatcher who had been dismissed from her position with the Birmingham Police Department was reinstated with back pay, longevity pay, and her actual out-of-pocket medical expenses that would have been covered by insurance had she remained employed. She claimed that her back pay also should have included the amount of the City of Birmingham’s contribution to her health-insurance coverage. This court disagreed, concluding that, “even if Whitlow had been at work she would not have received the dollar amount of the City’s contributions to her health insurance coverage. Instead, she would have received the benefit of those contributions — continued health insurance coverage.” Whitlow, 689 So.2d at 109.

Likewise, in this case, Douglas would not have received as part of his pay the dollar amount that Bishop State contributed toward his health insurance. Therefore, we conclude that he would not be entitled to recover that dollar amount as part of his award of back pay.

As noted above, this court may not have reached the same conclusion as the hearing officer; however, for the reasons set forth above, the decision of the hearing officer reinstating Douglas to his position as instructor at Bishop State and awarding him back pay from the date his compensation was terminated is affirmed.

AFFIRMED.

PITTMAN, BRYAN, THOMAS, and MOORE, JJ., concur.

      . Dismissal of instructors from state community colleges is governed by the Fair Dismissal Act ("the FDA”), § 36-26-100 et seq., Ala. Code 1975. See Perine v. Kennedy, 868 So.2d 1123 (Ala.Civ.App.2003). Section 36-26-104(b) of the FDA provides that all appeals of a final decision of the hearing officer lie with the Alabama Court of Civil Appeals.


source: Caselaw Access Project

author: THOMAS, Judge.

license: Public Domain

text:
    Christopher S. HATCH v. NTW INCORPORATED d/b/a National Tire and Battery Company.
    2080029.
    Court of Civil Appeals of Alabama.
    June 19, 2009.
    Certiorari Denied Oct. 16, 2009 Alabama Supreme Court 1081300.

      David Madison Tidmore of Weaver Tid-more, LLC, Birmingham, for appellant.
    Marion F. Walker of Ford & Harrison LLP, Birmingham, for appellee.
   THOMAS, Judge.

Christopher S. Hatch worked for NTW Incorporated d/b/a National Tire and Battery Company (“NTW”) as service manager of NTW’s tire store located on Highway 280 in Birmingham. In October 2005, Hatch injured his back while unloading a tire truck and stacking tires. Hatch reported the injury to the store manager, Jerry LeDoux, who was also unloading and stacking tires. Hatch saw his personal physician about the pain in his back at first, but he did file a report of injury and was later assigned an authorized treating physician. Although he was in pain and was unable to perform many of his typical duties, Hatch continued to report to work at the store. LeDoux accommodated Hatch by allowing Hatch to work at the front counter and deal with customers instead of performing shop duties that involved lifting or overhead work.

In December 2005, Garry Fox, NTW’s area director for Alabama and Tennessee stores, visited the store. Fox noticed that Hatch was having difficulty moving around the store to perform his duties. According to Fox, NTW did not have a light-duty position it could provide to injured employees. Fox told both LeDoux and Hatch that Hatch could not be on light duty and that he would need to take leave and get better.

Hatch’s last day at the store was December 12, 2005. After that date, Hatch continued to seek medical treatment and was in contact with NTW’s workers’ compensation insurance carrier. However, Hatch did not contact LeDoux about his recovery progress. Hatch said that he had contacted another NTW store manager, Randy Sparks, about his progress, but Sparks was not Hatch’s supervisor. Le-Doux testified that he had tried to contact Hatch several times, leaving messages for him on both his home telephone and his cellular telephone. LeDoux said that he had explained to Fox, when questioned in May 2006, that he had not heard from Hatch and that he had tried to contact Hatch several times to no avail.

Hatch did not recover from his back injury as he had expected. He continued to see his initial authorized physician, Dr. Charles Clark, for several months. Then Dr. Clark referred Hatch to Dr. Robert B. Poczatek, who, after treating Hatch for a time, placed Hatch at maximum medical improvement (“MMI”) on May 16, 2006. Because Hatch did not believe that he could not improve with different treatments, he disputed Dr. Poczatek’s decision that he was at MMI; pursuant to § 25-5-77(a), Hatch requested a panel of four physicians from which to choose a new treating physician from the workers’ compensation carrier. He selected Dr. Carter Slappey from the panel and continued treatment with him.

Records from NTW’s corporate headquarters indicate that Hatch was officially placed on a leave of absence on February 26, 2006, by Donna Artola, who was the workers’ compensation manager at NTW’s corporate headquarters. Because Hatch had been away from work since December 2005, on May 16, 2006, Fox sought information from Robert Ben-Eliyahu, a human-resources manager for NTW, on whether Hatch could be discharged pursuant to NTW company policy. Ben-Eliya-hu contacted Artola via electronic mail (“email”) on that same date about the possibility of discharging Hatch. Artola, in a responding e-mail message sent on May 17, 2006, explained that the company records showed that Hatch had been on leave only since February 26, 2006, but that he was coming up on the expiration of his leave of absence and could be discharged under company policy at that time. It is undisputed that Fox, Artola, and Ben-Eli-yahu did not know that Dr. Poczatek had placed Hatch at MMI on May 16, 2006.

Artola contacted Hatch by telephone and subsequently by letter to inform him that his leave of absence was due to expire on May 25, 2006, and that he would be discharged on that date if he had not yet been released to return to work by his physician. In the letter, Artola assured Hatch that his discharge would have no effect on his workers’ compensation claim and that he would be eligible for rehire once he obtained a physician’s release form permitting him to resume the activities of his position. Hatch did not tell Artola that he had been placed at MMI on May 16, 2006. Hatch’s discharge became effective on May 25, 2006.

Copies of NTW’s employee handbooks are in the record on appeal. The first handbook, which was effective until January 2006, contains the following pertinent provisions:

“Non-Family and Medical Leave Act (FMLA) Disability Leave. Up to 3 months in the case of medical disability. The specific period will be limited to the period of disability certified by a physician.”
“Return to Work
“If you are on a disability or medical disability leave of absence, you must return to work when your physician or a company-appointed physician determines that you are able to resume normal duties. We require your physician’s written release before reinstatement to the active payroll. If you wish to extend your leave beyond this point, you must apply for a personal leave of absence. Failure to return from an approved leave when released by your physician or when directed will be considered a resignation of employment.
“A physician’s written release will be required when returning to work from other short-term, medical related absences.”

The 2006 handbook contains the following similar provisions:

“Medical Leave of Absence — A Medical Leave of Absence may be granted to active regular, full-time employees with at least 90 days of active service, who has been medically certified to be unable to perform the essential functions of his/ her job. This is an unpaid leave, granted up to six 6 weeks (with physician’s certification). Further extensions to this leave may be granted with:
“• Physician certification that employee is unable to return to work at the end of the initial time period;
“•An updated estimate of when the employee will be able to return to work.
“1. This leave may be taken on an intermittent basis (not all at one time) when medically necessary.
“2. [NTW] may require an employee on intermittent leave to transfer temporarily to an available alternative position for which employee is qualified, if the position has equivalent pay and benefits and better accommodates recurring period of leave than the employee’s regular position.”
“Return to Work — If you are on a disability or medical disability leave of absence, you must return to work when your physician or a company-appointed physician determines that you are able to resume normal duties. We require your physician’s written release before reinstatement to the active payroll. If you wish to extend your leave beyond this point, you must apply for a personal leave of absence. Failure to return from an approved leave when released by your physician or when directed will be considered a resignation of employment. A physician’s written release may also be required when returning to work from other short-term, medical related absences. Your supervisor will advise you of this requirement, which depends on case-by-case circumstances.
“If an employee is unable to return to work at the end of the 12 weeks, and all other leave options have been exhausted, a final letter of termination is sent, advising of termination and any available benefits. If you are released by your physician and choose to apply for employment with [NTW], you will need to complete the new hire process, and should you return within one year of your termination date, your seniority will be reinstated. However, the normal waiting period for benefits will apply.”

Hatch sued NTW, seeking workers’ compensation benefits and alleging that NTW had discharged him from employment in violation of Ala.Code 1975, § 25-5-11.1, which prohibits an employer from discharging an employee solely because the employee has filed a workers’ compensation claim. The trial court ordered that the two claims would be tried separately pursuant to Rule 42(b), Ala. R. Civ. P., but it declined to sever the two claims into separate actions pursuant to Rule 21, Ala. R. Civ. P. NTW moved for a summary judgment on Hatch’s retaliatory-discharge claim on March 14, 2008; after Hatch responded to that motion, the trial court entered a summary judgment in favor of NTW on the retaliatory-discharge claim on March 31, 2008. On April 23, 2008, Hatch filed what purported to be a postjudgment motion pursuant to Rule 59, Ala. R. Civ. P.; however, at that point, the trial court’s summary-judgment order was not a final judgment because Hatch’s workers’ compensation claim had not yet been resolved. Hatch and NTW settled the workers’ compensation claim, and the trial court entered a judgment approving the settlement on April 30, 2008. At that point, because the summary-judgment order became final upon the entry of the judgment approving the settlement, Hatch’s postjudgment motion became effective, see New Addition Club, Inc. v. Vaughn, 903 So.2d 68, 72 (Ala.2004); the trial court denied Hatch’s postjudgment motion on May 16, 2008. Hatch appealed the summary judgment on his retaliatory-discharge claim to the Alabama Supreme Court on May 29, 2008; that court transferred the appeal to this court, pursuant to Ala.Code 1975, § 12-2-7(6).

We review a summary judgment de novo; we apply the same standard as was applied in the trial court. A motion for a summary judgment is to be granted when no genuine issue of material fact exists and the moving party is entitled to a judgment as a matter of law. Rule 56(c)(3), Ala. R. Civ. P. A party moving for a summary judgment must make a prima facie showing “that there is no genuine issue as to any material fact and that [it] is entitled to a judgment as a matter of law.” Rule 56(c)(3); see Lee v. City of Gadsden, 592 So.2d 1036, 1038 (Ala.1992). If the movant meets this burden, “the burden then shifts to the nonmovant to rebut the movant’s prima facie showing by ‘substantial evidence.’ ” Lee, 592 So.2d at 1038 (footnote omitted). “[S]ubstantial 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); see Ala.Code 1975, § 12-21-12(d). Furthermore, when reviewing a summary judgment, the appellate court must view all the evidence in a light most favorable to the nonmovant and must entertain all reasonable inferences from the evidence that a jury would be entitled to draw. See Nationwide Prop. & Cas. Ins. Co. v. DPF Architects, P.C., 792 So.2d 369, 372 (Ala.2000); and Fuqua v. Ingersoll-Rand Co., 591 So.2d 486, 487 (Ala.1991).

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 the employee’s having filed a workers’ compensation claim arising from the work-related injury. See Massey v. Krispy Kreme Doughnut Corp., 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 has filed a workers’ compensation claim is not often easily obtained, an employee by may establish by circumstantial evidence that the actual reason for the discharge was the employee’s filing of a workers’ compensation claim. Alabama Power Co. v. Aldridge, 854 So.2d 554, 564-65 (Ala.2002). In Aldridge, our supreme court discussed seven factors that a court may consider in determining whether the necessary causal relationship between the employee’s workers’ compensation claim and that employee’s discharge exists; evidence indicating the existence of those factors is circumstantial evidence indicating that the discharge was in retaliation for filing a worker’s compensation claim. Aldridge, 854 So.2d at 564-65. In addition to proximity of time between the filing of a claim and the discharge, id. at 566, the Aldridge court identified 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 for the discharge and that reason is uncontradicted, the employer is entitled to a judgment as a matter of law 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.

NTW moved for a summary judgment, arguing that it had a legitimate reason for discharging Hatch: the expiration of his leave of absence. The pre-2006 NTW employee handbook permits an employee a three-month leave of absence for medical disability. The 2006 NTW employee handbook permits a medical leave of absence for 6 weeks, but it later mentions that the leave period is limited to 12 weeks. NTW apparently based its decision that Hatch’s leave period had expired on the pre-2006 employee handbook because it permitted him a three-month leave of absence, based on the start date of February 26, 2006. This conclusion is supported by Artola’s statement in her e-mail response to Ben-Eliyahu’s query regarding when Hatch could be discharged. Artola noted that she had originally been unaware of Hatch’s leave of absence and that she “had to start the [leave of absence] late and give him his 90 days.”

NTW argues that the trial court properly entered a summary judgment in its favor because Hatch did not prove the necessary causal connection between his filing a workers’ compensation claim in October 2005 and his discharge in May 2006. NTW also contends that Hatch did not demonstrate that its stated reason for his discharge — that his leave of absence had expired — was pretextual. Hatch, however, argues that he presented substantial circumstantial evidence supporting a conclusion that his workers’ compensation claim was the sole motivating factor for his discharge and substantial evidence indicating that NTW’s stated reason for the discharge was pretextual.

As noted above, a discharged employee may prove the necessary causal link between the employee’s discharge and the employee’s filing of a workers’ compensation claim with circumstantial evidence. Aldridge, 854 So.2d at 565-65. Hatch argues that the fact that Fox desired to discharge him on the same date that Dr. Poczatek placed him at MMI satisfies the “proximity” factor mentioned in Aldridge. Id. at 565. The factor mentioned in Aldridge was the proximity of time between the filing of a workers’ compensation claim and the date of the discharge of the employee. Naturally, a close relationship in time between the filing of a workers’ compensation claim and an employee’s discharge could give rise to an inference that the two events were connected. Id. at 565. Hatch was not discharged until seven months after he filed his workers’ compensation claim; the two events do not appear to be “proximate.” The lack of proximity of time between the filing of Hatch’s workers’ compensation claim and his discharge is not circumstantial evidence indicating that the sole motivating factor in Hatch’s discharge was the filing of his worker’s compensation claim.

As we understand it, Hatch’s argument regarding “proximity” is actually different from that mentioned in Aldridge. Hatch argues that Fox, Artola, and Ben-Eliyahu chose to discharge him on or around the same date Hatch’s authorized treating physician found him to be at MMI, and Hatch appears to argue that the proximity of those two events is also circumstantial evidence indicating that his discharge was motivated solely by his filing of a workers’ compensation claim. However, NTW had been providing workers’ compensation benefits to Hatch for months, and he had been on leave as a result of his injury. The timing of the discharge and the assignment of MMI around the same date appears to be nothing but a coincidence. We fail to see how the proximity between Dr. Poczatek’s assignment of MMI, which none of the decision makers knew about, and Hatch’s discharge would lead to an inference that the filing of Hatch’s workers’ compensation claim was the motivation for his discharge.

Hatch further argues that he established that Artola and Fox knew of his workers’ compensation claim. See Flint Constr. Co., 904 So.2d at 247. NTW concedes that both Artola and Fox had knowledge of the claim. However, this evidence alone is not sufficient to demonstrate that Hatch’s workers’ compensation claim was the sole motivating factor in the decision to discharge him.

Hatch again relies on the proximity of time between his being placed at MMI and his discharge as evidence of a negative attitude toward his condition. As noted previously, Hatch failed to present evidence indicating that those making the decision to discharge him knew of the MMI determination. Hatch also argues that LeDoux’s alleged contact with his physician’s office on an unspecified date also demonstrates a negative attitude. Even assuming, as we must, that LeDoux attempted to contact one of Hatch’s physicians, we cannot agree that such action demonstrated a negative attitude toward Hatch’s injured condition by LeDoux. Hatch did not explain what information LeDoux sought, and, thus, he did not prove that LeDoux’s actions were motivated by a negative attitude toward Hatch’s injured condition. Without evidence of the date of the alleged contact or the information that LeDoux attempted to elicit, we cannot reasonably infer that LeDoux’s behavior was motivated by a negative attitude toward Hatch’s injured condition. Thus, Hatch failed to present substantial evidence creating a genuine issue of material fact regarding the demonstration of a negative attitude toward his injured condition by anyone affiliated with NTW.

Hatch further argues that the fact that he was permitted by LeDoux to take a light-duty counter position despite NTW’s policy of not providing light-duty work to injured employees and the fact that NTW allowed Hatch more than a three-month leave of absence demonstrates that NTW failed to adhere to its own company policy and, therefore, is circumstantial evidence of the necessary causal link between the filing of his workers’ compensation claim and his discharge. Hatch would have us infer that LeDoux’s actions in allowing Hatch to work within his ability out of compassion despite the lack of a company policy creating light-duty positions and NTW’s decision to discharge Hatch after his official leave of absence expired and not before constitute substantial evidence indicating that NTW’s stated reason for Hatch’s discharge was a mere pretext. We have considered, and rejected, a similar argument before. See Walker v. DCH Reg’l Med. Ctr., 853 So.2d 221, 228 (Ala.Civ.App.2002). Although we cannot necessarily say that an employer’s failure to follow company policy in such a manner that benefits the employee would never amount to circumstantial evidence indicating that the employer has as its purpose to discharge an employee in violation of § 25-5-11.1, in this particular case we can discern no reasonable inference that Le-Doux’s or NTW’s actions were linked to a decision to discharge Hatch solely because he filed a workers’ compensation claim. Walker, 853 So.2d at 228.

Hatch next argues that NTW gave different reasons for his discharge, thus, he says, creating an issue whether the stated reason was, in fact, false. Flint Constr., 904 So.2d at 251-52 (discussing a demonstration of pretext based on discrepancies in the stated reasons for the discharge by the employer). NTW representatives did give differently worded statements regarding the reason that Hatch was discharged. Artola’s letter referred to the expiration of Hatch’s leave of absence, while Fox testified in his deposition that Hatch had been discharged because he had failed to maintain contact concerning his condition, had failed to apprise the company of his expected date of return, and had exceeded his “allotted time.” The printout of NTW’s computerized records indicated that Hatch’s “RES Family Leave Expires” and indicates the date of expiration to be May 31, 2006. Although there are slight differences in the expression of the reason for Hatch’s discharge, the underlying ground for discharge remains the same in each example above — -Hatch’s leave of absence expired. We cannot agree that the slight differences in the expression of the stated reason amount to a material factual difference that would require sending the case to a jury.

Hatch’s final argument that he presented substantial evidence indicating that his filing of a workers’ compensation claim was the sole motivating factor in his discharge is that the evidence demonstrates a pattern of retaliatory conduct by NTW. See Massey, 917 So.2d at 839 (discussing showing pretext by establishing that a stated reason for discharge has been applied in a discriminatory manner to those employees who have filed workers’ compensation claims). Hatch first argues that his failure to report a 1998 back injury, which occurred when he worked for Sears, is evidence that NTW had a pattern and practice of trying to avoid workers’ compensation liability. Although the record indicates that the tire division of Sears was purchased by NTW, the record does not establish that Sears was a predecessor company to NTW or that NTW would be responsible for any acts of Sears. In any event, the fact Hatch seeks to establish is immaterial. Hatch must show that the stated reason for his discharge was applied in a discriminatory manner to him because he filed a workers’ compensation claim, not that NTW had a pattern of avoiding paying workers’ compensation claims. See id.

Hatch also presented the affidavit of a co-employee, Russell E. Spencer, to establish that NTW has a pattern and practice of applying “the stated basis ... in a discriminatory manner to employees who have filed workers’ compensation claims.” Aldridge, 854 So.2d at 568. Spencer’s affidavit reads as follows:

“1. My name is Russell E. Spencer and I am over the age of nineteen years. I am a resident of the State of Alabama and I have personal knowledge of the matters set forth herein.
“2. I worked for NTW, Inc. from August 2004 until January 2006. While working for NTW, Inc., I held the positions of Salesperson, Sales Manager, and Service Manager. Also, while employed with NTW, Inc. I worked at the Galleria, Highway 280 and Homewood store locations.
“3. In May of 2005, I sustained an on-the-job injury and made a claim for worker’s compensation benefits. Immediately, after my on-the-job accident, my supervisor, Mr. Randy Sparks, began expressing a negative attitude regarding my claim/injuries. For example, Mr. Sparks called NTW’s worker’s compensation insurance carrier and told the claims representative handling my claim that I was ‘faking’ my injuries. Also, Mr. Sparks later threatened to void a promotion I was being offered if I didn’t return to work before my worker’s compensation authorized physician released me. I eventually left his store (Galleria) and took a demotion, obtaining a job at NTW’s Homewood store. Once there, Mr. Sparks kept calling my supervisor inquiring about my attendance, work attitude, etc. I am unaware of Mr. Sparks doing this with anyone else.
“4. In January 2006, I was terminated by NTW. Prior to that date, NTW’s Area Manager, Garry Fox and I had conversations regarding my return to work and my worker’s compensation claim.
“5. Also, after being released by my physicians to return to work, NTW, Inc., refused to reinstate me in violation of its leave of absence polices.
“6. It is my belief that I was terminated and not reinstated because I filed a worker’s compensation claim.”

What Spencer’s affidavit does not establish is of the most import. Spencer does not state the reasons that NTW gave for his discharge. The affidavit does not clearly indicate whether and how long Spencer was on a leave of absence after his injury. Paragraph 3 would support an inference that Spencer returned to work for some time after his accident. Spencer states that he and Fox had conversations about his return to work and his workers’ compensation claim, but Spencer does not recount those conversations or indicate that they were negative. Although Spencer states that he believes his discharge and NTW’s failure to rehire him stemmed from his filing a workers’ compensation claim against NTW, the affidavit does not clearly demonstrate that NTW has a policy of applying its policies unfairly to those employees who do file a workers’ compensation claim. Spencer’s affidavit is evidence of nothing other than that he was discharged at some point after filing a workers’ compensation claim. It does not establish that NTW had a practice of applying the stated reason for Hatch’s discharge in a discriminatory manner against those employees who filed workers’ compensation claims.

Notably, in his deposition, Hatch was asked for evidence that he believed established that he was discharged solely for filing his workers’ compensation claim. Hatch explained that he knew of a co-employee by the first name of “Mark” who had been injured, had had surgery, and had been out a “long time,” but who was permitted to return to his position once he had recovered. Hatch claimed that Mark’s differing experience evidenced NTW’s retaliatory intent in discharging him before he was recovered from his work-related injury. As counsel for NTW pointed out, however, Mark’s story actually disproved Hatch’s allegation that NTW discriminated against those employees who made workers’ compensation claims by discharging them from employment.

Finally, NTW argues that the fact that Hatch admits that he was unable to perform the duties of his employment triggers the application of the “willing and able” doctrine, see Bleier v. Wellington Sears Co., 757 So.2d 1163, 1171-72 (Ala.2000), which, NTW contends, mandates an affirmance of the summary judgment in its favor. NTW is only partly correct. The “wiling and able” doctrine may be used by an employer to establish a defense to an employee’s retaliatory-discharge claim, but it does not automatically mandate an affir-mance of a judgment in favor of the employer. Dunn v. Comcast Corp., 781 So.2d 940, 943-44 (Ala.2000) (discussing the application of the “willing and able” doctrine as a defense to a retaliatory-discharge claim). Instead, a trial court considering a summary-judgment motion on a retaliatory-discharge claim should consider whether the employer has established the “willing and able” defense, along with any others, and whether the employee has presented sufficient evidence to rebut the employer’s showing to create a question of fact regarding whether the stated reason for discharge is a pretext. Dunn, 781 So.2d at 943. “[I]f a genuine issue of material fact exists as to whether the non-retaliatory reason given by the employer was actually the basis for the discharge, then a summary judgment would not be appropriate.” Id. We have considered NTW’s stated reason for Hatch’s discharge, and we have considered and rejected Hatch’s arguments that he presented substantial evidence indicating that NTW’s reason for his discharge was a mere pretext. The fact that Hatch was unable to resume his duties only serves to further bolster the conclusion that NTW’s stated reason for Hatch’s discharge — that his leave of absence had expired — was not a pretext for a retaliatory discharge.

Hatch has failed to present substantial evidence indicating that NTW’s decision to discharge him was motivated solely by his filing a workers’ compensation claim. Furthermore, Hatch has failed to create a genuine issue of material fact concerning whether NTWs stated reason for his discharge — the expiration of his leave of absence — was merely a pretext. Accordingly, we affirm the summary judgment in favor of NTW on Hatch’s retaliatory-discharge claim.

AFFIRMED.

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

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


author: PER CURIAM. BASCHAB, Judge,

text:
    Thomas Walter WARREN, Jr. v. STATE of Alabama.
    CR-04-2100.
    Court of Criminal Appeals of Alabama.
    April 28, 2006.
    Rehearing Denied June 23, 2006.

      Erskine R. Mathis, Birmingham, for appellant.
    Troy King, atty. gen., and Audrey Jordan, asst. atty. gen., for appellee.
   PER CURIAM.

The appellant, Thomas Walter Warren, Jr., was convicted of one count of first-degree robbery, a violation of 13A-8-41, Ala.Code 1975, and one count of first-degree burglary, a violation of § 13A-7-5, Aia.Code 1975. He was sentenced to life imprisonment for each count. Warren was ordered to pay a $500 fine in each case and restitution in the amount of $3,569.64.

The evidence adduced at trial showed the following. On June 10, 2004, Alma Knox was in her residence watching an Atlanta Braves baseball game on television while her 14-year-old grandson, D., mowed her back lawn. The front door to the residence was locked, but the back door had been left unlocked so that D. could come back in. While mowing the grass, D. observed a man subsequently identified as Warren walk from the boat shed located on Knox’s property toward Knox’s residence. D. was not overly concerned because he assumed that his grandmother knew the man.

Knox was still watching the baseball game when she looked up to find Warren standing a few feet from where she was sitting. He was dressed in blue jeans and a blue and white striped shirt. Warren demanded that Knox give him the keys to her automobile and threatened to kill her if she did not comply. Knox stated, “You’re kidding me.” In response, Warren raised a large boat anchor he was holding in his right hand and again demanded the keys to the automobile and threatened to Ml Knox. Knox was afraid that if Warren hit her with the anchor, she would bleed to death. Frightened, Knox got out of her chair and gave Warren the spare keys to her automobile.

Knox followed Warren through the kitchen. Warren began demanding money, but Knox told him that she was widowed and that she did not have any money. Warren continued to hold the anchor in his hand as he took some food, a lighter, and some cigarettes from the kitchen. Warren told Knox that if she telephoned the police, he would return in less than one hour to kill her. Warren then left in Knox’s 1991 dark blue Buick automobile; there was a 150-foot garden hose in the trunk.

After Warren drove away, Knox saw her oldest son, Steve, who lived next door, driving up to the residence in his truck. She screamed for him to follow the man who had just driven away with her automobile. Steve was unable to apprehend Warren and unable to obtain any information related to the robbery. The next time Knox saw her automobile, it had been wrecked.

Officer David Young of the Graysville Police Department arrived at Knox’s residence about 1:20 p.m. At that time, Knox was alone. Officer Young went inside, attempted to calm Knox, and gathered the necessary information to complete an incident report. Knox also gave Officer Young a description of the intruder. A “BOLO” alert was issued describing Warren and the 1991 Buick.

Detective John Duchock met Officer Young at Knox’s residence, where he was briefed on the details of the incident. Detective Duchock proceeded to the Yerk-wood community to investigate, and Officer Young remained at the Knox residence for approximately two hours to ensure Knox’s safety. Later that day, Detective Duchock received a telephone call from the Adamsville Police Department stating that Warren “was at his mother’s house” and that he was about to leave to return to Graysville. Several minutes later, Detective Duchock passed Warren and attempted to turn his vehicle around to follow Warren. By the time Detective Duchock turned, Warren had fled.

Meanwhile, D. and several other relatives were standing in Knox’s front yard. D. saw Warren drive to the road leading to the house, stop Knox’s 1991 Buick momentarily, and then drive away. D. immediately told his mother, who in turn telephoned the police. Law enforcement officers responded to the call. Officer Murdock went to Knox’s home and Officer Young responded to an alternate location where the vehicle driven by Warren had been sighted earlier. Officer Murdock was driving behind Warren on Highway 78 and notified Officer Young that he was in pursuit of the suspect’s vehicle. As the officers attempted to conduct a traffic stop, Warren began to speed and failed to yield at several traffic lights. After several miles, Warren lost control of the vehicle and slid into a ditch. As the officers approached, Warren got out of the vehicle and ran into some nearby woods. A canine unit arrived and after approximately one hour, Warren emerged from the woods with minor injuries.

After his injuries were treated, Warren was transported to the Graysville Police Department. Warren was apprised of his Miranda rights, and he gave a statement to Detective Duchock. In that statement, Warren admitted that he had broken into Knox’s residence, that he had demanded money, and that he had stolen her automobile. He stated that he had selected Knox’s residence because it appeared that she was wealthy. He stated that there had been a garden hose in the trunk of the automobile, but he traded the hose for $10 worth of crack cocaine.

At trial, Warren testified that on June 9, 2004, he had been riding with another individual who dropped him off in the vicinity of Knox’s residence. Warren testified that he slept in the woods that evening. The next day, Warren, assuming that no one was home, decided to enter the residence and take the keys to the automobile that was parked outside the residence. Upon entering the residence, he heard the television. He then stopped in the kitchen to take some food. He testified that, when he saw Knox sitting in her recliner watching television, he approached her and asked for the keys to her automobile. He denied having a weapon and he denied that he threatened Knox in any way; according to Warren, he told Knox that he was not there to hurt her and that he only wanted the keys to her automobile.

Warren testified that Knox got up from the recliner, walked past him, and retrieved a set of keys. She handed him the keys and he left in the automobile. He stated that he told Knox that she could retrieve her automobile from the Winn-Dixie grocery store parking lot later that day. When asked about returning to Knox’s residence several hours later, Warren admitted that he returned because he had planned to return Knox’s automobile to her, but he said that he left because he was afraid.

I.

Warren contends that the trial court abused its discretion when it failed to instruct the jury on the lesser-included offense of third-degree robbery. Specifically, he claims that, because he testified that he did not use a weapon or threaten the victim in any way during the course of the robbery, he was entitled to such a jury charge. We agree.

The Alabama Supreme Court has made it very clear when a defendant is entitled to a lesser-included jury instruction.

“[Ojur decisions are to the effect that every accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however weak, insufficient, or doubtful in credibility.”

Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978); see also Ex parte Stork, 475 So.2d 623, 625 (Ala.1985); Ex parte Wood, 715 So.2d 819, 822 (Ala.1998). This Court has also followed this general rule regarding jury instructions for lesser-included offenses. See, e.g., Thomas v. State, 824 So.2d 1 (Ala.Crim.App.2000); McDowell v. State, 740 So.2d 465 (Ala.Crim.App.1998).

“ ‘ “An individual accused of the greater offense has a right to have the court charge on the lesser offenses included in the indictment, when there is a reasonable theory from the evidence supporting his position. [Citation omitted.] A court may properly refuse to charge on lesser included offenses only (1) when it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) when the requested charge would have a tendency to mislead or confuse the jury. [Citation omitted.]” ’ ”

Wilkerson v. State, 486 So.2d 509, 514 (Ala.Crim.App.1986) (quoting Ex parte Stork, 475 So.2d 623, 625 (Ala.1985) (quoting in turn Ex parte Chavers, 361 So.2d at 1107)).

“The accused is entitled to have the trial court charge on lesser included offenses where there is a reasonable theory from the evidence supporting the defendant’s position, regardless of whether the State or defendant offers the evidence.” Ex parte Pruitt, 457 So.2d 456, 457 (Ala.1984); Parker v. State, 581 So.2d 1211 (Ala.Crim.App.1990).

“A judge may properly refuse to charge on lesser included offenses only where the only reasonable conclusion from the evidence is that the accused is guilty of the offense charged or no crime at all or where the requested charge would have a tendency to mislead or confuse the jury.”

McKeithen v. State, 480 So.2d 36, 37 (Ala.Crim.App.1985).

Section 13A-8-43, Aia.Code 1975, defines third-degree robbery as follows:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

In the instant case, the jury heard evidence that arguably supported the lesser-included offense of third-degree robbery. Warren testified at trial that he did not threaten Knox. He also testified that he was not armed with a boat anchor. This evidence went toward rebutting the presumption that Warren was armed and created a question of fact for the jury as to whether he should be convicted of first-degree robbery or the lesser-included offense of third-degree robbery. Because there was some evidence to support the defendant’s claim that he was guilty of only the lesser-included offense of robbery in the third degree, the refusal of the request to instruct the jury on the lesser-included offense constitutes reversible error.

As outlined herein, the judgment of the trial court is due to be reversed, and Warren is entitled to a new trial. We hereby remand this case to the trial court for actions consistent with this opinion.

REVERSED AND REMANDED.

McMILLAN, P.J., and COBB, J., concur.

SHAW, J., concurs in the result.

BASCHAB, J., dissents, with opinion, which WISE, J., joins.

BASCHAB, Judge,

dissenting.

In this case, the appellant testified that he took the victim’s vehicle, but stated that he did not threaten the victim and that he was not armed with a boat anchor. Nevertheless, he now contends that the trial court should have instructed the jury on the lesser included offense of third-degree robbery, arguing that “[a] robbery 3rd degree charge summarized his entire theory of the case.” (Appellant’s brief at p. 29.) The Alabama Supreme Court addressed and rejected a similar argument in Ex parte Hannah, 527 So.2d 675, 675-77 (Ala.1988), as follows:

“The petitioner, Hannah, was arrested, along with codefendant Dixon, for the armed robbery of a tavern named Bentley’s in Montgomery, Alabama. Hannah was subsequently convicted of robbery in the first degree, while, in a separate trial, Dixon was determined to be not guilty on a charge of robbery in the first degree. Hannah and Dixon claim that they had agreed to bring the alleged victim of the robbery, Andrew Smith, the owner/manager of Bentley’s, some stolen whiskey in return for money that Smith had given to Hannah and Dixon in advance. The two defendants claim that Smith signed warrants accusing them of robbery because they never returned with the whiskey.
“Smith and the assistant manager of Bentley’s testified that they had been robbed by Hannah and Dixon at gunpoint. Both Smith and the assistant manager claimed that Dixon held a gun on them while Hannah assisted in the taking of cash from Smith.
“The petitioner contends that he was entitled to a charge on the lesser offense of robbery in the second degree....
“The trial court was not required to give a lesser-offense charge in the present case if there was no evidence tending to bring the offense within the definition of the lesser included offense. Lidge v. State, 419 So.2d 610 (Ala.Crim.App.), cert. denied, 419 So.2d 616 (Ala.1982), held that robbery in the second degree is a lesser included offense of robbery in the first degree when the ‘robber is aided by another person actually present and one participant is armed with a deadly weapon or dangerous instrument, or causes physical injury to another.’ Id. at 613. In Lidge, the Court of Criminal Appeals appears to indicate that where there is evidence that an armed robbery is committed by two or more persons and one person is unarmed, then the persons accused are necessarily entitled to a charge of robbery in the second degree. This is an incorrect interpretation of the law. A charge of second degree robbery does not always have to be given in such a situation. As the [Ex parte] Chavers [, 361 So.2d 1106 (Ala.1978),] case holds, a court may properly refuse to charge on lesser included offenses when it is clear to the judicial mind ‘that there is no evidence tending to bring the offense within the definition of the lesser offense.’
“Under the evidence presented, the petitioner could not be convicted of robbery in the second degree. Code 1975, § 13A-2-23, provides: “A person is legally accountable for the behavior of another constituting a criminal offense if, with the intent to promote or assist the commission of the offense: ... (2) He aids or abets such other person in committing the offense.... ’ Therefore, under the evidence presented by the State, the petitioner would be criminally liable for Dixon’s act of carrying the gun. Because the petitioner would be criminally liable for the acts of his accomplice, he would be guilty of robbery in the first degree. See Harris v. State, 398 So.2d 777, 779 (Ala.Crim.App.), cert. denied, 398 So.2d 780 (Ala.1981). According to the State’s evidence, the petitioner was obviously aware that Dixon was armed with the gun during the actual commission of the robbery. In order for the petitioner to be convicted of robbery in the second degree, there must be evidence that the robbery was committed by two or more persons and that he did not have an intent to commit the armed robbery or knowledge that an accomplice was going to do so. No evidence was presented that would indicate that the petitioner was guilty of robbery in the second degree.
“However, the petitioner did present evidence that the armed robbery never took place. Instead of explaining the facts presented by the State, he presented evidence that a theft was committed when he allegedly tricked Andrew Smith into giving him money. The evidence presented by both sides left the jury with only two possible choices: Hannah either committed theft or he committed robbery in the first degree.
“The evidence presented by the petitioner at trial amounts to a denial that a robbery of any kind occurred. In order for the jury to reach the conclusion that a robbery in the second degree occurred, it would have to conclude that both the witnesses for the petitioner and those for the prosecution were lying. It would then have to somehow infer that what really happened was that the petitioner and Dixon robbed the victim without the use of a deadly weapon, or that the petitioner assisted Dixon with the armed robbery without intent to commit an armed robbery and without knowledge that one was taking place. No evidence exists to support such inferences. The evidence supports only the conclusion that the petitioner was involved either in a theft or in an armed robbery.”

(Emphasis added.)

Similarly, in this case, the victim’s testimony was sufficient to establish a prima facie case of first-degree robbery, and the appellant denied that any type of robbery occurred. Rather, under his theory of the evidence, he committed a first-degree theft of property. There was not any evidence to support such a conclusion. Therefore, as in Hannah, the evidence supported only the conclusion that the appellant committed a first-degree robbery or a first-degree theft of property. An instruction on third-degree robbery was not appropriate under these facts. Accordingly, I respectfully dissent.

      . Miranda v. Arizona, 384 U.S. 436, 86 S.Ct. 1602, 16 L.Ed.2d 694 (1966).


author: PARKER, Justice.

text:
    Ex parte State of Alabama. (In re Thomas Walter WARREN, Jr. v. STATE of Alabama).
    1051434.
    Supreme Court of Alabama.
    March 28, 2008.
    Troy King, atty. gen., and Kevin C. Newsom, deputy atty. gen., and Audrey Jordan, asst. atty. gen., for petitioner.
    Erskine R. Mathis, Birmingham, for respondent.
   PARKER, Justice.

Thomas Walter Warren, Jr., was convicted, following a jury trial, of first-degree robbery and first-degree burglary. He appealed, and the Court of Criminal Appeals reversed his convictions and remanded the case for a new trial on the basis that the trial court erred in refusing to instruct the jury on the lesser-included offense of third-degree robbery. Warren v. State, 35 So.3d 633 (Ala.Crim.App.2006). We granted the State’s petition for certiorari review to determine whether the Court of Criminal Appeals’ decision conflicts with its decisions in Saffold v. State, 951 So.2d 777, 780 (Ala.Crim.App.2006), and Welch v. State, 630 So.2d 145, 146-47 (Ala.Crim.App.1993). We conclude that its decision in this case does conflict with Saffold and Welch, and we reverse the judgment of the Court of Criminal Appeals.

I. Background

Alma Knox testified that on June 10, 2004, she was in her residence watching an Atlanta Braves baseball game on television. Her 14-year-old grandson was mowing the lawn. The front door of the residence was locked; however, the back door had been left unlocked so that her grandson could come back in. While mowing the lawn, her grandson saw a man later determined to be Warren walk from the boat shed located on the property to the residence. Knox’s grandson was not concerned because he assumed that Knox knew the man.

Knox testified that she looked up to find Warren standing a few feet away from where she was sitting. Warren then demanded that Knox give him the keys to her automobile and threatened to kill her if she did not comply. Knox said that she responded, “You’re kidding me.” She then testified that Warren raised a large boat anchor he was holding in his right hand. Again, he demanded the keys to the automobile and threatened to kill Knox. Frightened that Warren would hit her with the anchor, Knox got out of her chair and gave Warren the spare keys to her automobile.

Knox then followed Warren into the kitchen, where he demanded money. Knox told Warren that she was widowed and that she did not have any money. According to Knox, while holding the anchor in his hand, Warren took some food, a lighter, and some cigarettes from the kitchen. Before leaving, Warren told Knox that if she telephoned the police, he would return in less than an hour to kill her. He then left in Knox’s 1991 dark blue automobile which had a 150-foot garden hose in the trunk.

Warren’s testimony was quite different. He testified at trial that on June 9, 2004, he had been riding in an automobile with another individual who dropped him off near Knox’s residence. He testified that he slept in the woods that evening, and the next day, assuming that no one was home, he decided to enter Knox’s residence and take the keys to the automobile that was parked outside. When he entered the residence, Warren said, he heard the television. He stopped in the kitchen to take some food and saw Knox sitting in her recliner watching television. He says that he approached Knox and asked if he could have the keys to her automobile. Warren testified that he did not have a weapon and that he did not threaten Knox in any way. According to Warren, he told Knox that he was not there'to hurt her and that he only wanted the keys to her automobile.

Warren testified that Knox got up from her recliner and walked past him to retrieve a set of keys. She handed him the keys, and he left in the automobile. Warren testified that he told Knox that she could retrieve her automobile later that day from the parking lot of the Winn-Dixie grocery store. Warren later wrecked the car as he tried to elude a police vehicle that was pursuing him. He stated that he had traded the garden hose for $10 worth of crack cocaine.

The jury found Warren guilty of first-degree robbery and first-degree burglary. The Court of Criminal Appeals reversed Warren’s conviction, stating that because there was some evidence to support Warren’s claim that he was guilty of only the lesser-included offense of third-degree robbery, the refusal of his requested jury instruction on the lesser-included offense constitutes reversible error. Judge Bas-chab dissented, with an opinion. We granted the State’s petition for the writ of certiorari to determine whether the Court of Criminal Appeals’ decision conflicts with its prior cases or with the cases of this Court.

II. Analysis

This Court reviews legal issues, such as this one, de novo. In Clark v. State, 896 So.2d 584, 641 (Ala.Crim.App.2000), the Court of Criminal Appeals addressed when it is appropriate to give a jury a charge on a lesser-included offense:

“ ‘A person accused of the greater offense has a right to have the court charge on lesser included offenses when there is a reasonable theory from the evidence supporting those lesser included offenses.’ MacEwan v. State, 701 So.2d 66, 69 (Ala.Crim.App.1997). An accused has the right to have the jury charged on ‘ “any material hypothesis which the evidence in his favor tends to establish.” ’ Ex parte Stork, 475 So.2d 628, 624 (Ala.1985). ‘[Ejvery accused is entitled to have charges given, which would not be misleading, which correctly state the law of his case, and which are supported by any evidence, however[] weak, insufficient, or doubtful in credibility,’ Ex parte Chavers, 361 So.2d 1106, 1107 (Ala.1978), ‘even if the evidence supporting the charge is offered by the State.’ Ex parte Myers, 699 So.2d 1285, 1290-91 (Ala.1997), cert. denied, 522 U.S. 1054, 118 S.Ct. 706, 139 L.Ed.2d 648 (1998). However, ‘[t]he court shall not charge the jury with respect to an included offense unless there is a rational basis for a verdict convicting the defendant of the included offense.’ § 13A-l-9(b), Ala.Code 1975. ‘The basis of a charge on a lesser-included offense must be derived from the evidence presented at trial and cannot be based on speculation or conjecture.’ Broadnax v. State, 825 So.2d 134, 200 (Ala.Crim.App.2000), aff'd, 825 So.2d 233 (Ala.2001), cert. denied, 536 U.S. 964, 122 S.Ct. 2675, 153 L.Ed.2d 847 (2002). ‘ “A court may properly refuse to charge on a lesser included offense only when (1) it is clear to the judicial mind that there is no evidence tending to bring the offense within the definition of the lesser offense, or (2) the requested charge would have a tendency to mislead or confuse the jury.” ’ Williams v. State, 675 So.2d 537, 540-41 (Ala.Crim.App.1996), quoting Anderson v. State, 507 So.2d 580, 582 (Ala.Crim.App.1987).”

Robbery in the first degree is defined in § 13A-8-41, Ala.Code 1975, as follows:

“(a) A person commits the crime of robbery in the first degree if he violates Section 13A-8-43 and he:
“(1) Is armed with a deadly weapon or dangerous instrument ....”

Robbery in the third degree is defined in § 13A-8-43, Ala.Code 1975, as follows:

“(a) A person commits the crime of robbery in the third degree if in the course of committing a theft he:
“(1) Uses force against the person of the owner or any person present with intent to overcome his physical resistance or physical power of resistance; or
“(2) Threatens the imminent use of force against the person of the owner or any person present with intent to compel acquiescence to the taking of or escaping with the property.”

The definitions contained in § 13A-8-1, Ala.Code 1975, are applicable to §§ 13A-8-41 and 13A-8-43, the statutes defining the offenses of robbery in the first degree and robbery in the third degree, respectively. Those definitions were applied in Saffold v. State, supra, a case the State contends conflicts with the decision of the Court of Criminal Appeals here:

“Section 13A-8-l(13), Ala.Code 1975, which is applicable to § 13A-8-43, see § 13A-8-40(a), Ala.Code 1975, defines ‘threat’ in part as ‘[a] menace, however communicated, to ... [clause physical harm to the person threatened or to any other person.’ ‘Menace’ is defined in the Compact Oxford English Dictionary 1062 (2d ed.1994) in part as ‘[a] declaration or indication of hostile intention, or of a probable evil or catastrophe’; Mer-nam-Webster’s Collegiate Dictionary 774 (11th ed.2003) defines ‘menace’ in part as ‘a show of intention to inflict harm.’ ”

Saffold v. State, 951 So.2d at 780 (emphasis omitted).

In Welch v. State, supra, a case which the State also contends conflicts with the Court of Criminal Appeals’ holding here, the Court of Criminal Appeals stated:

“ ‘A person commits the crime of robbery in the third degree if in the course of committing a theft he: (1) Uses force against the person of the owner ... with intent to overcome his physical resistance or physical power of resistance; or (2) Threatens the imminent use of force against the person of the owner ... with intent to compel acquiescence to the taking of or escaping with the property.’ Ala.Code 1975, § 13A-8-43(a). At the time of the taking, the victim had realized that the appellant did not have a gun, although he had previously told her that he did. We note, however, that ‘the State does not have to prove that the defendant actually had a gun in order to sustain a conviction of first degree robbery.’ Kent v. State, 504 So.2d 373, 376 (Ala.Cr.App.1987) (emphasis added); Miller v. State, 431 So.2d 586, 592 (Ala.Cr.App.1983). In this case, the only reasonable conclusion is that ‘the words and actions of the appellant caused the victim to part unwillingly with [her] property because of fear of injury to [her] person by the appellant.’ Watson v. State, 389 So.2d 961, 965 (Ala.Cr.App.1980), overruled on other grounds, Steeley v. City of Gadsden, 533 So.2d 671 (Ala.Cr.App.1988). This evidence was clearly sufficient to support the conviction for third degree robbery.”

630 So.2d at 146-47.

The per curiam opinion of the Court of Criminal Appeals states:

“In the instant case, the jury heard evidence that arguably supported the lesser-included offense of third-degree robbery. Warren testified at trial that he did not threaten Knox. He also testified that he was not amed with a boat anchor. This evidence went toward rebutting the presumption that Warren was armed and created a question of fact for the jury as to whether he should be convicted of first-degree robbery or the lesser-included offense of third-degree robbery.”

35 So.3d at 636-37 (emphasis added).

In Ex parte Hannah, 527 So.2d 675, 677 (Ala.1988), this Court stated:

“As [Chavers v. State, 361 So.2d 1106 (Ala.1978),] holds, a court may properly refuse to charge on lesser included offenses when it is clear to the judicial mind ‘that there is no evidence tending to bring the offense within the definition of the lesser offense.’ ”

In Ex parte Hannah, this Court found that the defendant presented evidence at trial denying that a robbery of any kind had occurred and that in order for the jury to reach the conclusion that the lesser offense of robbery in the second degree had occurred, it would have had to presume that witnesses for both the petitioner and for the prosecution were lying. 527 So.2d at 677.

“It logically follows, we think, that where the evidence permits no reasonable conclusion other than that defendant is guilty of robbery in the first degree as expressly charged or not guilty of any offense whatever, charges as to robbery in the second or robbery in the third degree should not be given. The trial court was correct in limiting its oral charge accordingly.”

Richburg v. State, 416 So.2d 1079, 1082 (Ala.Crim.App.1982).

If Warren’s entire testimony was to be believed, then he would not be guilty of any kind of robbery because he neither had a weapon nor made a threat. The only way the jury could convict Warren of third-degree robbery was if the jury believed that both Knox and Warren had lied and then cobble together various elements of their contrasting testimony to reach a compromise verdict. In other words, a conviction for third-degree robbery would require the jury to believe the victim’s testimony that Warren threatened her and disbelieve his testimony that he did not threaten her, and to disbelieve her testimony that he had an anchor and believe his testimony that he did not. This very closely resembles the scenario in Ex parte Hannah.

An instruction on third-degree robbery was not required under the facts here. The trial court did not err when it failed to instruct the jury on the lesser-included offense of robbery in the third degree.

III. Conclusion

We, therefore, reverse the judgment of the Court of Criminal Appeals on the ground that an instruction on third-degree robbery as a lesser offense included within the offense of first-degree robbery was not required, and we remand this case to that court for proceedings consistent this opinion.

REVERSED AND REMANDED.

SEE, LYONS, WOODALL, STUART, SMITH, BOLIN, and MURDOCK, JJ, concur.

COBB, C.J., recuses herself.


author: BASCHAB, Presiding Judge.

text:
    Marwan MICKENS v. STATE of Alabama.
    CR-06-1304.
    Court of Criminal Appeals of Alabama.
    Sept. 28, 2007.
    Rehearing Denied Dec. 14, 2007.
    Jackson Brett Harrison, Montgomery, for appellant.

      Troy King, atty. gen., and John J. Davis, asst. atty. gen., for appellee.
   BASCHAB, Presiding Judge.

On January 24, 2005, the appellant, Mar-wan Mickens, pled guilty to first-degree theft of property. The trial court sentenced him to serve a term of two years in prison, but suspended the sentence and ordered him to serve five years on probation. In 2007, revocation proceedings were initiated. After conducting a revocation hearing, the circuit court revoked the appellant’s probation. This appeal followed.

The appellant argues that the circuit court erroneously accepted his admission that he violated the terms of his probation because it did not determine whether he waived his rights pursuant to Rule 27.6(c), Ala. R.Crim. P.; did not determine that he made the admission voluntarily and that it was not the result of force, threats, or coercion; and did not determine whether there was a factual basis for the admission. The record does not include a transcript of the revocation hearing. In fact, the court reporter verified that she “did not report, nor transcribe, any matters pertaining to a probation revocation on ... CC-04-1530.70.” Also, the circuit court’s written revocation order does not include any facts regarding the voluntariness of the appellant’s admission. Therefore, we cannot properly review the appellant’s claims. Accordingly, we reverse the circuit court’s judgment revoking the appellant’s probation and remand this case for the circuit court to conduct a new revocation hearing. See Fleming v. State, 972 So.2d 835 (Ala.2007); Lee v. State, 936 So.2d 551 (Ala.Crim.App.2005); Whitlock v. State, 923 So.2d 1147 (Ala.Crim.App.2005). In conducting the revocation hearing, we caution the circuit court to comply with the due process requirements set forth in Gagnon v. Scarpelli, 411 U.S. 778, 93 S.Ct. 1756, 36 L.Ed.2d 656 (1973); Morrissey v. Brewer, 408 U.S. 471, 92 S.Ct. 2593, 33 L.Ed.2d 484 (1972); McCoo v. State, 921 So.2d 450 (Ala.2005); Armstrong v. State, 294 Ala. 100, 312 So.2d 620 (1975); and Rule 27, Ala. R.Crim. P.

REVERSED AND REMANDED.

McMILLAN, SHAW, WISE, and WELCH, JJ., concur.

      . To the extent the appellant may argue that the circuit court did not conduct a revocation hearing, the record refutes his argument. The case-action-summary sheet clearly indicates that the circuit court conducted a revocation hearing.