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Insurance Law Jennifer Pickett Recent the proper documentation. The lawsuit obtain to him for impossible was itthat Developments failing to comply with the company’s pol- for dismissal subsequent his of outosear icies and procedures. in Third-Party HMMA should be barred from takingthatarguedHaleappeal,On Cases violating company policies because that for him discharged it that positionthe Arising Out of the plaintiff’s unemployment compensa- in HMMA officer to hearing adversely decided administrative was theissueby Workplace hearing officer determined that Hale’s the because words, other In appeal.tion Accidents ployment-compensation statute and he not unem- was the policy under defined attendance as the ofviolation“misconduct” I. RETALIATORY he continued with symptoms in his right unemployment-compensation receivingbenefits, from disqualified be notshould when 2008 September in surgeryother DISCHARGE arm. Although the plaintiff was released Hale reasoned that HMMA also should to light-duty work on October 6, 2008, be prevented from using that argument. Pursuant to Alabama Code § 25-5- Hale relied on two prior cases, Wal-Mart he 2008, 2, November and thenbetween 11.1, a plaintiff makes out a prima facie Stores, Inc. v. Hepp, 882 So. 2d 329 (Ala. one took and work of days ninemissed case of retaliatory discharge by showing 2003) and Wal-Mart Stores, Inc. v. Smith- his following leave bereavement ofday “1) an employment relationship, 2) an erman, 743 So. 2d 442 (Ala. 1999), which death.aunt’s on-the-job injury, 3) knowledge on the held that collateral estoppel could be used part of the employer of the on-the-job Hyundai Motor Manufacturing Ala- to bar a retaliatory-discharge plaintiff injury, and 4) subsequent termination of bama (HMMA’s) employee handbook es- who had been denied unemployment- employment based solely upon the em- tablished that attendance that fell below compensation benefits.3 The adverse, ployee’s on-the-job injury and the filing 98% would be cause for corrective action. however, is not necessarily true. of a workers’ compensation claim.”1 Once Because certain missed days, such as for an employee has established a prima facie bereavement leave or for a work-related The appellate court concluded that case, the burden shifts to the employer to injury, would not count as an absence as the officer considered whether Hale’s fail- provide a legitimate reason for the dis- long as certain verifying information was ure to comply with HMMA’s policies was charge and shifts again to the employee to provided, the plaintiff was asked to pro- misconduct under the unemployment- present evidence that the legitimate rea- vide documentation for the nine days he compensation statute, i.e., whether it was son is a mere pretext. missed and to prove his relationship with a “deliberate, willful, or wanton disregard the deceased. Hale acknowledged that he of the employer’s policies or interests.” In Hale v. Hyundai Motor Manufac- It was not a determination that the rea- and policy attendance the of awarewas turing Alabama, LLC, the plaintiff filed son for Hale’s termination was not “valid be could absences his thatunderstood a lawsuit seeking workers’ compensation under HMMA’s policies, that HMMA’s pro- not did he if unexcusedconsidered benefits and also alleging a retaliatory proffered reasons were not legitimate or He documentation. requested thevide discharge claim.2 Hale developed bilat- were pretextual, or that HMMA ter- any submit to failed he that admittedalso eral carpal tunnel syndrome and had sur- minated Hale’s employment for the sole doctor his that argued butdocumentation gery on each arm in February and March reason that he had filed a workers’ com- so excuse requested the him give tofailed 2008. He returned to work but had an- pensation claim.” Because an employer 18 Birmingham Bar Association


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