What Is Pretext in an Alabama Retaliatory Discharge Case?

What Is Pretext in an Alabama Retaliatory Discharge Case?

An injured Alabama worker files a workers’ compensation claim and is later fired.  The employer says: “We did not fire her because she filed workers’ compensation. We fired her for attendance.”

Does that end the retaliatory discharge claim?  No.

The employer may have a perfectly legitimate reason for the termination, but Alabama law allows the employee to present evidence showing that the reason offered by the employer was not the true reason for the termination, but instead a pretext for retaliatory discharge.

That concept—pretext—is one of the most important concepts in Alabama retaliatory discharge law.

In many cases, the ultimate question is not whether the employer can identify a legitimate-sounding reason for firing the injured worker.  It is: Was that really the reason?

What Does “Pretext” Mean?

In this context, pretext simply means that the reason given by the employer is not the true reason for the termination.

Alabama’s retaliatory discharge statute, Ala. Code § 25-5-11.1, prohibits an employer from terminating an employee solely because the employee instituted or maintained an action to recover workers’ compensation benefits.

As we explained in our earlier article, What Does “Solely” Really Mean Under Alabama’s Retaliatory Discharge Law?, the Alabama Supreme Court has developed a burden-shifting framework for determining whether workers’ compensation was actually the prohibited reason for the termination.

In Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala. 1988), the Court explained that once the employee establishes the required prima facie case, the employer can come forward with evidence of a legitimate reason for the discharge. The employee then has the opportunity to rebut that explanation with evidence that it was not true but was instead a pretext for an impermissible termination.

The Alabama Supreme Court refined that language in Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120 (Ala. 1992), explaining that the employee has the burden of going forward with rebuttal evidence showing that the employer’s stated reason is not true. Importantly, Culbreth also recognized that when the employee’s prima facie case is strong and the employer’s asserted explanation is weak or equivocal, the jury may simply disbelieve the employer.

That is why the credibility of the employer’s explanation is so important.

A Legitimate Reason for Termination Can Be a Complete Defense

Before going further, we should emphasize something important, not every employer explanation is pretextual.  An employee who has filed a workers’ compensation claim can still be fired for a legitimate reason.

Suppose an employee steals from the employer, and the material facts surrounding the theft are undisputed. The employer does not lose the ability to terminate that employee simply because the employee previously filed a workers’ compensation claim.  The same principle can apply to genuine misconduct, policy violations, attendance problems, or other legitimate reasons for termination.

Alabama Power Co. v. Aldridge, 854 So. 2d 554 (Ala. 2002), makes this point particularly important. The Supreme Court explained that an employer’s stated reason can be sufficient as a matter of law when the underlying facts are undisputed and there is no substantial evidence that the reason was discriminatorily applied, conflicts with the employer’s express termination policy, or has been disavowed or otherwise shown to be pretextual.

So, the purpose of looking for pretext is not to manufacture a retaliatory discharge claim whenever an injured worker is fired.  It is to determine whether the employer’s explanation stands up when tested against the evidence.

Recommended Reading: The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun.  This previous article examines the circumstantial evidence identified in Aldridge, including failure to follow company policy, discriminatory treatment of similarly situated employees, sudden changes in performance evaluations, and evidence that the stated reason for termination was false.

How Can an Injured Worker Show Pretext?

There is rarely one formula; instead, the evidence may come from many different places.

An employer changes its reason for the termination.

The documents do not support the reason given.

The employer fails to follow its own policy.

Other employees engaged in the same conduct but were not fired.

A supervisor’s deposition testimony contradicts what the supervisor said previously.

The employee had years of good evaluations and suddenly became a disciplinary problem after filing workers’ compensation.

The chronology does not make sense.

Or the employer’s witnesses simply cannot provide a consistent explanation of what happened.

Several Alabama Supreme Court cases illustrate these different ways of showing pretext.

Changing Reasons for Termination Can Be Powerful Evidence

One of the cases I particularly like for explaining pretext is Flint Construction Co. v. Hall, 904 So. 2d 236 (Ala. 2004).  Hall had suffered multiple work-related injuries while employed by Flint Construction. When his employment ended, the employer did not maintain one simple explanation throughout the dispute.  The Alabama Supreme Court noted that, at the time of discharge, Hall was told only that there was no work for him. But the jury later heard various reasons the employer gave at different times—including explanations provided to the Georgia Department of Labor, during deposition testimony, and at trial. The Court held that the jury could infer from those shifting explanations that the reasons given for Hall’s discharge were pretextual.

That gives us an extremely useful practical rule: When an employer’s reason for firing an injured worker changes, ask why.

Perhaps there is an innocent explanation, but if the real reason for the termination was clear at the time the decision was made, it is fair to ask why that explanation later changed.

Compare What Was Said at Different Stages

This is one reason a careful chronology can become so valuable.

What reason did the employee’s supervisor give on the day of termination?

What does the termination notice say?

What did the employer tell the unemployment-compensation agency?

What did the employer state in its answer to the lawsuit?

What did it say in discovery responses?

What did the decision-maker testify to during deposition?

What did the witnesses say at trial?

Ideally, the same legitimate reason should run consistently through those accounts.  If it does not, the discrepancies may matter.

In Motion Industries, Inc. v. Pate, 678 So. 2d 724 (Ala. 1996), the Alabama Supreme Court recognized evidence of pretext where the record reflected discrepancies between a supervisor’s deposition testimony and trial testimony. Flint later specifically identified Motion Industries as an example of evidence sufficient to support pretext.

That is why depositions can be particularly important in retaliatory discharge litigation.  They do more than tell us the employer’s story.  They allow us to compare that story with everything the employer has said and documented before.

What If the Employer’s Own Records Contradict Its Explanation?

Another important case is Coastal Lumber Co. v. Johnson, 669 So. 2d 803 (Ala. 1995).  There, the Alabama Supreme Court found sufficient evidence of pretext where the employer changed its stated reason for terminating the employee and the employer’s own records did not support its alleged reason for discharge. Flint later cited Coastal Lumber for precisely that proposition.

That suggests another important question: Do the documents tell the same story as the witnesses?

Suppose an employer says: “We fired him for excessive absenteeism.”  We would want to see the attendance records.

Suppose the employer says: “Her performance had been deteriorating for months.”  We would want to see the performance evaluations.

Suppose the employer says: “Company policy required termination.”  We would want to see the actual policy-and not merely the current version.  We may need to know which version was in effect when the employee was fired.

The employer’s documents can support a legitimate termination, but they can also undermine the employer’s explanation.

Failure to Follow Company Policy Can Show Pretext

This takes us back to one of the Aldridge factors.

If an employer says: “We terminated him because that’s our policy,” we need to determine whether that is true.  Consider a company with progressive discipline:

First violation — verbal warning.

Second — written warning.

Third — final warning.

Fourth — termination.

An injured worker commits what the employer calls a first violation and is immediately fired.  That raises obvious questions.

Did the company skip its own disciplinary process?

Was there an exception permitting immediate termination?

Did it use that exception for everyone?

Did the policy actually require termination, or merely allow it?

How had the company handled the same violation before?

Aldridge specifically identifies both failure to adhere to established company policy and discriminatory treatment compared with similarly situated employees as circumstances relevant to causation.  That is why a company’s own handbook can sometimes become one of the employee’s most useful pieces of evidence.

“We Fire Everyone for That”—Do You?

Comparator evidence can also expose pretext.  Imagine the employer says: “Anyone who accumulates eight attendance points is terminated.”  That sounds like a powerful defense.

But discovery shows:

Employee A — 10 points — written warning.

Employee B — 11 points — no discipline.

Employee C — 9 points — allowed to remain employed.

Injured Employee — 8 points — terminated shortly after filing workers’ compensation.

Those employees may or may not be sufficiently similarly situated to constitute meaningful comparators. The details matter, and the employer’s assertion that “everyone is treated the same” can be tested against its records.

This is an important distinction.

The question is not merely: What does the policy say should happen?  It is also: What actually happened when the policy was applied to other employees?

A Suddenly “Bad Employee” Deserves a Closer Look

Pretext may also appear in the employee’s work history.

Suppose someone works for an employer for 15 years.  Good evaluations.  Raises.  Promotions.  No meaningful disciplinary history.

Then the employee gets hurt.

Within months: Poor evaluations.  Write-ups.  Complaints.  Warnings.  Termination.

Does that automatically prove retaliation?  No, people’s performance can change, but Aldridge specifically identifies sudden changes in work-performance evaluations following a workers’ compensation claim as relevant circumstantial evidence.

That is why we should not evaluate a termination by looking only at the final disciplinary notice.  Sometimes the employee’s history before the injury provides the context needed to understand what happened afterward.

Sometimes the Employer’s Explanation Is Simply Weak

Culbreth contains an important lesson that can easily be overlooked.  Here, the Court explained that where an employee’s prima facie evidence is strong and the employer’s evidence of its asserted reason is weak or equivocal, the factfinder may simply disbelieve the employer.

That matters because plaintiffs sometimes think they must independently prove exactly what happened inside the employer’s decision-making process-but circumstantial evidence does not always work that way.

Sometimes proving that the employer’s explanation is unreliable is itself powerful evidence.  That does not relieve the employee of the ultimate burden imposed by § 25-5-11.1, but credibility matters.

And in a case in which the employer’s explanation is the principal defense, the credibility of that explanation can become central.

Flint Construction Shows How the Pieces Can Come Together

Flint Construction is particularly instructive because the Supreme Court did not examine one isolated inconsistency; it examined the evidence as a whole.  Among other things, there was evidence concerning the employer’s awareness of Hall’s injuries, the circumstances surrounding his termination, and different explanations for why his employment ended. The Supreme Court concluded that it could not say as a matter of law that the jury was prohibited from finding the employer’s stated reason pretextual.

And Flint collected several earlier Alabama decisions illustrating different kinds of pretext evidence:

• Motion Industries — discrepancies between deposition and trial testimony;
• Coastal Lumber — changing reasons plus company records that did not support the asserted reason; and
• Culbreth — suspicious circumstances surrounding when and how the employer arrived at and communicated its explanation.

That is an important lesson.  Pretext does not always look the same.

From Our Experience: The First Explanation May Not Be the Final Story

One thing we have learned from litigating retaliatory discharge cases is not to evaluate the case solely from the termination paperwork.

The document may say:

Attendance.

Or:

Insubordination.

Or:

Violation of company policy.

That is where the investigation begins—not necessarily where it ends.

We want the personnel file, the handbook, the attendance records, the disciplinary records, the emails, the identities of the decision-makers, the chronology, the treatment of other employees and eventually, where litigation warrants it, testimony under oath from the people who made the decision.

Then we compare everything.

Sometimes the employer’s original explanation becomes stronger after that investigation.  Sometimes it becomes considerably weaker.  And sometimes the most important evidence is not one dramatic “smoking gun,” but a series of small inconsistencies that make the stated explanation increasingly difficult to believe.

Pretext Does Not Mean Every Disputed Firing Is Retaliatory

There is an important caution.  An employee’s disagreement with the employer’s decision does not itself prove pretext.  An employer can make a decision that seems unfair.  It can make a poor business decision.  It may even be mistaken about some facts, but the legal question under § 25-5-11.1 is whether the employee was terminated for the prohibited retaliatory reason.

That is why Aldridge matters so much. If the material facts supporting the employer’s legitimate reason are undisputed and there is no substantial evidence of discriminatory application, conflict with express company policy, or other evidence undermining the asserted reason, the employer may be entitled to judgment as a matter of law.

Pretext therefore requires evidence, not suspicion.

What Evidence Should an Injured Worker Preserve?

If you are terminated after seeking Alabama workers’ compensation benefits, preserve documents that may later allow the employer’s explanation to be evaluated.

That can include your:

• termination notice;
• employee handbook;
• disciplinary notices;
• performance evaluations;
• attendance records;
• emails and text messages;
• work restrictions;
• medical appointment notices;
• communications with supervisors and human resources; and
• names of employees who may have been treated differently under the same policies.

Also write down important conversations while they are still fresh in your memory.

What appears insignificant immediately after termination can become important when compared with the employer’s records months later.

Recommended Reading: When an Employer Says You Were Fired for Attendance After a Work Injury, where we will examine attendance separately because it is a common legitimate reason asserted by employers—and because the analysis can change dramatically depending upon the attendance policy, the nature of the absences, the employer’s past practices, and how similarly situated employees were treated.

The Real Question Is Usually Simple

The law surrounding pretext can become complicated, but the question at its center is remarkably straightforward.

The employer says:  “This is why we fired the employee.”

The evidence then asks:  “Is that true?”

That is why pretext is generally at the heart of an Alabama retaliatory discharge case.

An employer is certainly entitled to fire an injured employee for a genuine, lawful reason, but Alabama law also permits us to ask the question that matters: Was that really the reason the employee was fired?

Recommended Reading

As we continue this series:

• Can My Employer Fire Me After I File a Workers’ Compensation Claim in Alabama?
• What Does “Solely” Really Mean Under Alabama’s Retaliatory Discharge Law?
• The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun
• Why Timing Matters After an Alabama Workers’ Compensation Claim
• When an Employer Says You Were Fired for Attendance After a Work Injury

 

If you have suffered a job injury, were subsequently fired and you have questions about your rights and benefits under Alabama’s workers compensation laws -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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