What Happens After You File an Alabama Retaliatory Discharge Lawsuit?

What Happens After You File an Alabama Retaliatory Discharge Lawsuit?

You suffered an injury at work.  You pursued workers’ compensation benefits.  Your employer later fired you, and after reviewing what happened, you and your attorney believe there is sufficient evidence to file an Alabama retaliatory discharge lawsuit.

What happens next?

A retaliatory discharge lawsuit is different from the underlying workers’ compensation claim. The workers’ compensation case concerns the benefits you may be entitled to receive because of your workplace injury. A retaliatory discharge lawsuit is a separate civil action alleging that your employer violated Ala. Code §25-5-11.1 by terminating you because you pursued your rights under Alabama’s Workers’ Compensation Act.

Usually, a lawsuit has to be filed in a retaliatory discharge claim, and most of our clients have never been involved in a lawsuit before. Terms such as interrogatories, requests for production, depositions, summary judgment and mediation may mean very little until you actually become involved in litigation, and not knowing the terminology can be somewhat intimidating-but it doesn’t need to be.

Once the lawsuit begins in a retaliatory discharge claim, much of the work involves answering a deceptively simple question: Why were you really fired?

The Employer Will Usually Have a Different Explanation

Alabama law prohibits an employer from terminating an employee solely because the employee pursued workers’ compensation benefits, but employers rarely admit that this is why an employee was fired.  Instead, an employer may contend that the employee was terminated because of:

• attendance;
• violation of company policy;
• failure to follow call-in procedures;
• insubordination;
• poor performance;
• dishonesty;
• inability to perform the job;
• refusal of light-duty work; or
• some other allegedly legitimate reason.

Alabama retaliatory discharge law anticipates this situation.

Under Twilley v. Daubert Coated Products, Inc., once the employee establishes the required prima facie case, the employer may come forward with a legitimate reason for the termination. The employee then has the opportunity to present evidence that the stated reason was not the true reason but was instead a pretext for an impermissible termination.

That is one reason what happens after the lawsuit is filed can become so important.

Recommended Reading: What Is Pretext in an Alabama Retaliatory Discharge Case?

Discovery: Finding Out What Really Happened

After a lawsuit is filed, the parties begin the process known as discovery.

Discovery is the formal process through which each side obtains information and evidence relevant to the lawsuit. It commonly includes written questions called interrogatories, requests for documents, requests for admissions and depositions taken under oath.  We have previously explained those procedures in more detail in Recommended Reading: What Is Discovery?.

For purposes of a retaliatory discharge case, the pertinent issue is what can discovery tell us about why the employer really fired the employee?

The Employee Usually Has Only Part of the Story

When someone first comes to see us about a possible retaliatory discharge claim, he or she may already have important evidence.  The employee may have:

• a termination letter;
• text messages with a supervisor;
• medical restrictions;
• attendance records;
• doctor’s excuses;
• performance evaluations;
• emails;
• a company handbook; or
• the names of coworkers who witnessed important events.

But there is another side of the story the employee usually cannot see.

What was Human Resources saying about the employee?

What did the supervisor tell upper management?

When was termination first discussed?

Who actually made the decision?

Did the decision-maker know about the workers’ compensation claim?

Were managers complaining about the employee’s injury, restrictions or medical appointments?

Did other employees violate the same rule without being fired?

Did the employer actually follow its own policy?

Did the employer’s internal documents give the same reason for termination that the employee was given?

Discovery is one of the ways we begin answering those questions.

Company Policies Can Become Important Evidence

Suppose an employer says:

“We had no choice. Company policy required us to terminate the employee.”

We want to see the policy, but obtaining the document may only be the beginning.

Was that actually the policy in effect when the employee was terminated?

Did the employee’s conduct violate it?

Did the policy actually require termination?

Was progressive discipline ordinarily required first?

Did management have discretion?

Was the policy enforced consistently?

How were other employees treated when they committed the same or similar violation?

These questions matter because in Alabama Power Co. v. Aldridge, the Alabama Supreme Court identified several types of circumstantial evidence that can be relevant to proving a causal connection in a retaliatory discharge case, including an employer’s failure to adhere to established company policy and discriminatory treatment compared with similarly situated employees.

Recommended Reading: Can My Employer Fire Me for Violating a Company Policy After I File a Workers’ Compensation Claim?

How Were Other Employees Treated?

We sometimes hear: “Other people did exactly what I did, and none of them got fired.”

That may be important, but there is a difference between believing that happened and being able to prove it.

The injured employee ordinarily does not have access to another employee’s disciplinary records or personnel information—and certainly should not improperly obtain confidential company documents in an effort to prove the case.  Through discovery, however, an attorney may be able to seek relevant information concerning similarly situated employees.

If the employer says a particular offense always results in termination, evidence showing how the employer actually treated other employees accused of the same conduct can become extremely important.

The reverse is also true.

If discovery establishes that the employer consistently terminated other employees for the same offense, regardless of whether they had workers’ compensation claims, that evidence may substantially strengthen the employer’s defense.

Discovery does not exist merely to find evidence that helps our client. It helps us determine what the evidence actually shows.

Internal Emails and Communications

The termination letter may say that the worker was fired for violating attendance policy, but what was being said internally before the letter was written?

Depending upon the facts and appropriate scope of discovery, relevant communications may exist involving:

• Human Resources;
• supervisors;
• safety personnel;
• management;
• the employee’s restrictions;
• medical appointments;
• absences;
• light-duty assignments;
• the workers’ compensation claim; or
• discussions concerning termination.

An email mentioning workers’ compensation does not automatically prove retaliatory discharge, but such documents can sometimes be very useful in determining what was actually occurring at the time.

When Was the Decision to Fire the Employee Really Made?

Timing can be especially important.

Suppose the employer contends “We terminated him because of something he did Friday;” but discovery reveals emails showing that management had already decided to terminate him on Wednesday.

That does not automatically prove retaliatory discharge-but it raises obvious questions.

That is the type of inconsistency that deserves investigation.  It is also why we have emphasized throughout this series that timing alone may not prove retaliatory discharge, but timing combined with other evidence can become significant.

Recommended Reading: How Important Is Timing in an Alabama Retaliatory Discharge Claim?

Depositions: Asking the Employer Questions Under Oath

After written discovery, depositions are often taken.

A deposition is sworn testimony, generally given with the attorneys present and a court reporter recording the questions and answers.

The injured employee will ordinarily be deposed, but we may also take depositions of people involved in the employer’s decision to fire our client, depending upon the facts of the case.

Those might include:

• the employee’s supervisor;
• Human Resources personnel;
• the person who recommended termination;
• the person who actually authorized termination;
• witnesses to important conversations; and
• an appropriate corporate representative.

Those depositions give us an opportunity to ask questions such as:

Who decided to fire the employee?

When did you make that decision?

Did you know about the workers’ compensation claim?

What policy did the employee violate?

Was termination mandatory under that policy?

Who investigated the alleged violation?

What documents did you review?

How have you treated other employees accused of the same thing?

Is the testimony under oath consistent with the documents and the reasons previously given for the termination?

Your Deposition Is Important Too

Discovery works both ways.

The employer’s attorney gets to investigate the employee’s case.  They can submit written discovery, obtain relevant documents and take the employee’s deposition.  Your response should be taken seriously.

Most of our clients have never given a deposition before. We do not believe that simply telling a client to “tell the truth and answer the question” is adequate preparation.  We meet with our clients and prepare them for the types of questions they are likely to encounter so that they are not sitting across from a defense attorney hearing important questions for the first time.

And there is one piece of advice we emphasize:

Never lie.

We can deal with bad facts-but lying under oath is a different matter.

Every lawsuit has facts we wish were different.  What is much harder to deal with is an inaccurate answer under oath or an attempt to hide something that the other side later discovers.

Honesty between attorney and client is particularly important during litigation.

Discovery Can Make a Case Stronger—or Weaker

This deserves emphasis.

Sometimes discovery dramatically strengthens a retaliatory discharge case.  We may discover:

• inconsistent explanations for the firing;
• a policy that was not followed;
• employees who committed the same offense but were not terminated;
• internal communications inconsistent with the official explanation;
• testimony that conflicts with company documents; or
• evidence showing that termination was being discussed before the event supposedly causing it.

But sometimes discovery goes the other direction.

The employer may produce strong documentation supporting its explanation.

Comparator records may show consistent discipline.

Witnesses may not support the employee’s recollection.

Documents may establish that the termination decision was made for legitimate reasons unrelated to workers’ compensation.

A good attorney has to evaluate both.  The purpose of litigation is not to ignore evidence we do not like. It is to determine what can actually be proven.

What Is Summary Judgment?

After discovery, an employer may file a motion for summary judgment.

In simple terms, the employer asks the judge to end the retaliatory discharge case without a trial because, even after discovery, the employee allegedly does not have sufficient evidence to establish the claim.

This is a critical stage of an Alabama retaliatory discharge lawsuit.

The employee may respond by pointing to the evidence developed during discovery showing that there is a genuine factual dispute that should be decided at trial.  That may include evidence concerning company policies, comparator employees, timing, negative attitudes toward the employee’s injured condition, changing explanations, or evidence suggesting that the stated reason for termination was false.

Those are precisely the types of circumstantial evidence discussed by the Alabama Supreme Court in Aldridge.

Recommended Reading: The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun.

What Happens at Mediation?

Many retaliatory discharge cases are mediated before trial.  We have explained the mechanics of mediation more fully in Recommended Reading: What Is Mediation?

A mediator is a neutral third party who assists the parties in attempting to reach a voluntary settlement. The mediator does not decide who wins and cannot force either party to settle.

One particularly useful feature of mediation is flexibility.

That can be especially important when an employee has both an unresolved workers’ compensation claim and a retaliatory discharge case.

We have resolved workers’ compensation and retaliatory discharge claims at the same mediation.

The two claims involve different legal rights and different potential damages, but mediation can sometimes allow the parties to negotiate a comprehensive resolution rather than addressing every issue separately.

That flexibility can also allow parties to negotiate matters that a judge deciding one particular claim may not have the power to order.

Ultimately, however, the decision whether to accept a settlement belongs to the client.

Our job is to explain the strengths and weaknesses of the case, discuss the risks of proceeding, evaluate the offers being made and give our advice.

The client decides whether to settle.

And something we have learned from experience is worth repeating:

Even if a case does not settle at mediation, mediation often helps both sides better understand the issues moving forward.

What If the Case Does Not Settle?

If the case survives summary judgment and cannot be resolved through negotiation or mediation, it proceeds toward trial, where the employee presents evidence supporting the contention that the termination violated Alabama’s retaliatory discharge statute and the employer presents evidence supporting its stated reason for the termination.

Witnesses testify.

Documents obtained during discovery become trial exhibits.

The employer’s representatives may be confronted with their prior deposition testimony.

And ultimately the evidence developed during the case is used to answer the same question we started with: Why was this employee really fired?

If you suffered an Alabama job injury, were subsequently fired, and have questions about whether your termination was related to your workers’ compensation claim, don’t hesitate to contact and speak with one of the experienced Alabama Workers Compensation and Social Security Disability attorneys at Powell and Denny today for a free consultation. Appointments are available in person, or virtually via Zoom if more convenient.  Powell and Denny would appreciate the opportunity to help.  And remember, there is no fee unless you win.

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