Ex Parte Breitsprecher
- Reporters:
- ,
- Before:
- Johnstone, Hooper, Houston, Lyons, Brown, England, Maddox, See
On May 8, 1996, Breitspreсher sued Stevens Graphics for workers’ compensation benefits and for damages for constructive retaliatory discharge. In Count I of the complaint, Breitsprecher alleged that, on or about July 7, 1995, she suffered an on-the-job injury or occupational disease arising out of and in the course of her employment. She claimed that her “ears, nose, throat, and body” were injured while she was employed as a quality auditor for Stevens Graphics. In Count II of the complaint, Breitsprecher alleged that, on or about July 7, 1995, Stevens Graphics constructively discharged her from her job in retaliation for her filing her claim for workers’ compensation benefits, in violation of
On February 25, 1998, after some discovery, Stevens Graphics moved for summary judgment on Breitsprecher‘s constructive retaliatory discharge claim. In support of its motion, Stevens Graphics attached a letter from Dr. H.W. Loveless, Jr., the physician treating Breitsprecher; a resignation letter dated June 23, 1995, from Breitsprecher to her supervisor Jack Sollenberger; a portion of Breitsprecher‘s deposition testimony; and a portion of Dr. Loveless‘s deposition testimony. Most significant was her resignation lettеr which read:
“Dear Jack:
“Due to the persistent medical problems caused by the chemicals at Stevens Graphics, I am forced to submit my two weeks resignation effective today June 23, 1995. I will terminate my employment on July 7, 1995.
“I enjoy my work, but I have no other alternative considering the environmental hazards аt this job.”
Additionally, Stevens Graphics attached a legal memorandum arguing that Breitsprecher‘s constructive retaliatory discharge claim was invalid because Breitsprecher was not “willing and able to work at Stevens Graphics when she resigned.”
Breitsprecher did not file an immediate response to Stevens Graphics‘s summary judgment motion. On March 26, 1998, the trial court entered a summary judgment in favor of Stevens Graphics. Breitsprecher moved to reconsider the trial court‘s entry of summary judgment. In support of her motion to reconsider and in opposition to Stevens Graphics‘s mоtion for a summary judgment, Breitsprecher submitted evidentiary materials and a brief. In her brief, Breitsprecher contended that, after she asserted a claim for workers’ compensation benefits for her on-the-job injury, her supervisor harassed her by placing her on probation and requiring her to meet with him monthly to discuss her work absenteeism caused by her injury. Breitsprecher‘s evidentiary materials included a portion of her deposition testimony; a portion of her supervisor Jack Sollenberger‘s deposition testimony; a copy of the first report of her injury made to Stevens Grаphics on May 5, 1994; a letter from Dr. Loveless stating
Pursuant to Breitsprecher‘s motion to reconsider, the trial court set aside its March 26, 1998, judgment in favor of Stevens Graphics. However, after considering the materials Breitsprecher submitted in opposition to Stevеns Graphics‘s motion for summary judgment, the trial court again entered a summary judgment in favor of Stevens Graphics.1
The following pertinent facts were before the trial court for its reconsideration of the motion for summary judgment. In 1992, when Breitsprecher‘s office was relocated above the printing presses at Stevens Graphics, she began suffering from frequent sinus infections, allergic rhinitis, ear infections, and headaches. Breitsprecher told Stevens Graphics that her treating physician recommended that an air purifier be placed in her office, but Stevens Graphics did not givе Breitsprecher an air purifier until sometime in 1995. On April 4, 1994, Dr. Loveless determined that Breitsprecher‘s sinus and ear problems were related to her exposure to volatile solvents used in her work environment. Breitsprecher formally reported her problems to Stevens Graphics‘s safety supervisor in a “First Report of Injury or Occupational Disease” form on May 5, 1994. She claimed that she was “experienc[ing] allergy attacks brought on by dust and fumes in the printing plant.” Stevens Graphics did not investigate Breitsprecher‘s claim. Because of her frequent allergy and sinus problems, Breitsprеcher missed a number of days from work. After Breitsprecher began missing work, her supervisor, Jack Sollenberger, singled her out and began meeting with her on a monthly basis to review her work attendance and work performance. Sollenberger had never conducted such monthly meetings with any other employee before meeting with Breitsprecher on a monthly basis. Sollenberger had never observed any problems with Breitsprecher‘s attendance before she began to experience frequent allergy and sinus problems. In fact, Sollenberger stated Breitsprecher‘s work performance was “excellent.” On July 7, 1995, Breitsprecher resigned from her job “[d]ue to the persistent medical problems caused by the chemicals at Stevens Graphics.” In her deposition testimony, Breitsprecher stated that she “had no choice but to resign” because she “suffered from chronic sinus, ear, nausea, and headache symptoms and had been singled out and harassed and could no longer tolerate working there.”
The record before us includes transcribed testimony given by Breitsprecher at the workers’ compensation trial months after the conclusion of the trial court‘s proceedings on the motion for summary judgment relating to her constructive retaliatory discharge claim. Specifically, she testified in the later workers’ compensation trial that she resigned from her position with Stevens Graphics because she “had so much trouble with the chemicals
Because this later workers’ compensation trial testimony was not before the trial court for its consideration in the summary judgment proceedings however, it cannot be considered in оur appellate review, even though it conflicts with Breitsprecher‘s deposition testimony and her affidavit considered by the trial judge in the summary judgment proceedings. Moreover, because this inconsistent workers’ compensation trial testimony postdates the summary judgment proceеdings on Breitsprecher‘s constructive retaliatory discharge claim, this inconsistent testimony cannot be validly argued to have estopped Breitsprecher‘s position in the summary judgment proceedings. See Luna, 631 So.2d at 918 (stating that the doctrine of judicial estoppel “preclude[s] a party from аssuming a position in a legal proceeding inconsistent with a position previously asserted“). The inconsistent workers’ compensation trial testimony was not previous to the position taken by Breitsprecher in her deposition, her affidavit, or her argument for the summary judgment proceedings on her constructive retaliatory discharge claim.
On the other hand, upon a remand of this case for further proceedings on Breitsprecher‘s constructive retaliatory discharge claim, and in the event of a renewal of the motion for summary judgment, this inconsistent workers’ compensation trial testimony would constitute good cause for filing such renewed motion for summary judgment and would constitute a position taken previously to such renewed summary judgment proceedings. An estoppel argument by Stevens Graphics in such a new posture of the case would not be foreclosed by the decision wе make today in the present posture of the case.
The issues before this Court with the case in its present posture are, first, whether Breitsprecher presented substantial evidence that Stevens Graphics constructively retaliatorily discharged her and, second, whether the willing-and-аble-to-work doctrine forecloses her claim. Appellate review of a trial court‘s ruling on a motion for summary judgment submitted on exhibits and written evidentiary materials is de novo, with no deference to the decision by the trial court. Young v. La Quinta Inns, Inc., 682 So.2d 402 (Ala. 1996). The appellate court will accept the tendencies of the evidence most favorable to the nonmoving party and will resolve all reasonable doubts in favor of the nonmoving party. System Dynamics Int‘l, Inc. v. Boykin, 683 So.2d 419 (Ala. 1996).
Breitsprecher presented substantial evidence to support her claim of constructive retaliatory discharge. To establish a claim of retaliatory discharge, an employee must presеnt substantial evidence that he or she was terminated from his or her job for seeking workers’ compensation benefits. Twilley v. Daubert Coated Products, Inc., 536 So.2d 1364 (Ala. 1988); and see
This Court recently explained the willing-and-able-to-work doctrine, which defines the significаnce of an employer‘s claim that an ex-employee suing for retaliatory discharge is not willing and able to work. Bleier v. Wellington Sears Co., [Ms. 1971121, January 21, 2000] 757 So.2d 1163 (Ala. 2000), overruling Consolidated Stores, Inc. v. Gargis, 686 So.2d 268 (Ala.Civ.App.), cert. denied, 686 So.2d 278 (Ala. 1996), and its progeny. See also McCrary v. RDF Alabama, Inc., [Ms. 1980698, January 21, 2000] 757 So.2d 421 (Ala. 2000). Bleier held that the ex-employee‘s being willing and able to return to work is not an essential element of the cause of action for retaliatory dischargе. Thus the ex-employee need not prove willingness and ability to work as part of his or her prima facie case. Bleier held, rather, that the ex-employee‘s being not willing and able to work may be asserted defensively by the employer either to establish the employer‘s nonretaliatory reason for discharging the еmployee or to reduce or to eliminate the damages the employee can recover in the retaliatory discharge action. 757 So.2d at 1166.
In the case before us, the employer Stevens Graphics contends that the employee Breitsprecher resigned her job аnd that Stevens Graphics did not discharge her at all. Thus Stevens Graphics cannot consistently assert a defense that it discharged Breitsprecher for the nonretaliatory reason that she was not willing and able to work. Nor did the evidence against Breitsprecher‘s willingness and ability to work cоnclusively eliminate the essential element of damages from her retaliatory discharge claim. When all reasonable doubts are resolved in favor of Breitsprecher, the tendencies of the evidence most favorable to her established that her physical condition оnly in combination with the harassment by Stevens Graphics caused her resignation, that her physical condition by itself did not render her unwilling or unable to work, and that, but for the harassment, she would have and could have kept her job and done her work. Indeed, her affidavit expressly swears that she was willing and аble to work.
Therefore, the trial court erred in entering a summary judgment in favor of Stevens Graphics, and the Court of Civil Appeals erred in affirming the judgment of the trial court. Accordingly, we reverse the judgment of the Court of Civil Appeals and remand this action for that court to remand it to the trial court. Upon remand to the trial court, Stevens Graphics is not precluded from asserting, either in a second motion for summary judgment or at trial, its defense of estoppel based upon Breitsprecher‘s workers’ compensation testimony given after the previous proceedings оn the motion for summary judgment made the basis of this appeal.
REVERSED AND REMANDED.
Hooper, C.J., and Houston, Lyons, Brown, and England, JJ., concur.
Maddox and See, JJ., dissent.