Alabama Workers' Comp Blawg

  • 05
  • Aug
  • 2017

Alabama Supreme Court Reverses Summary Judgment in Favor of Employer in Retaliatory Discharge Lawsuit

The Supreme Court recently released its opinion in Foster v North American Bus Industries, Inc. in which it reversed the trial court’s summary judgment in favor of the employer on a retaliatory discharge claim. The employer, NABI is a bus manufacturer in Anniston that has what it refers to as a "no fault, points based attendance and absenteeism policy". Under the policy, NABI assigns points to each absence or tardiness. Foster worked for NABI as a Harness Technician and alleged that she sustained an injury in July 2012. Foster went to the hospital and reported the alleged workplace injury and NABI told the representative at the hospital that Foster’s injury was not work-related. Foster was evaluated and treated at the hospital and given a work/school absence form excusing her from work. Foster missed some time from work and was subsequently terminated for violation of NABI’s absenteeism policy. Foster then filed an action for retaliatory discharge against NABI. NABI moved for summary judgment, which the trial court granted, and Foster appealed.

On appeal, the Supreme Court found that Foster had presented a prima facie case of retaliatory discharge, and that the burden of proof should have been shifted to NABI to present evidence that Foster’s employment was terminated for a legitimate reason. NABI argued that its absenteeism policy was followed in all instances, whether the employee had a work-related injury or not. NABI offered evidence that it had terminated 44 employees for violating the same policy and that it had not made any exceptions to this policy. However, the Supreme Court noted that there was evidence before the trial court that NABI had made an exception to the policy on prior occasions and that those exceptions, which dealt with the method of delivering a medical excuse note, created a genuine issue of material fact that precluded summary judgment. Specifically, the Supreme Court found that Foster introduced sufficient rebuttal evidence in support of her position that NABI’s stated reason for terminating her employment was pretextual.

About the Author

This article was written by Charley M. Drummond, Esq. of Fish Nelson & Holden, LLC. Fish Nelson & Holden is a law firm located in Birmingham, Alabama dedicated to representing employers, self-insured employers, and insurance carriers in workers’ compensation cases and related liability matters. Drummond and his firm are members of The National Workers’ Compensation Defense Network (NWCDN). The NWCDN is a national and Canadian network of reputable law firms organized to provide employers and insurers access to the highest quality representation in workers’ compensation and related employer liability fields. If you have questions about this article or Alabama workers’ compensation issues in general, please feel free to contact the author at or (205) 332-3414.

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