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can discharge an employee for any reason, evidence indicating that the proffered may have been able to survive summary even if the reason does not amount to reason was applied in a discrimina- judgment, but his failure to do anything misconduct under the unemployment- tory manner to employees who had whatsoever put the last nail in his coffin. II. OUTRAGE compensation statute, HMMA had filed workers’ compensation claims. grounds to terminate Hale pursuant to its Furthermore, Hale provided no evi- own policies and procedures. dence indicating that HMMA either To prevail on a cause of action for After rejecting the collateral estop- disavowed the proffered reason or outrage, the plaintiff in a workers’ com- pel argument, the appellate court went otherwise acknowledged its pretex- pensation case must prove that the defen- on to analyze the merits of the retaliatory tual status. The evidence Hale pre- dant engaged in “conduct so outrageous discharge claim. Hale took the position sented regarding whether the prof- in character and so extreme in degree as that it was impossible for him to provide fered reason conflicts with expressed to go beyond all possible bounds of de- medical documentation because the doc- company policy on grounds for dis- cency, and to be regarded as atrocious and tor refused to change the date on his re- charge, - that HMMA did not fol- utterly intolerable in a civilized society.”4 turn to work form, nor did he violate the low the four-step corrective-action In past cases, the appellate courts have bereavement-leave policy because he did policy set out in its attendance policy been hesitant to put fact patterns in this in fact attend his aunt’s funeral. The court - is not substantial evidence indicat- category except in three areas: (1) wrong- found that even though Hale’s subject- ing that HMMA violated its own ful conduct within the context of family ive pain and swelling caused him to miss policies because HMMA discharged burials; (2) an insurance agent’s coerc- work, that was not sufficient to establish Hale under its serious-misconduct ing an insured into settling an insurance that his absences should not be counted policy, which permits HMMA to claim; and (3) egregious sexual harass- against him under the attendance policy. forgo the corrective-action policy ment. Regarding the proof of relationship con- in certain circumstances, including In a very recent decision, Ex parte cerning a family member’s death, the serious violations of the attendance Liberty Mutual Insurance Company, the court acknowledged that HMMA re- policy and situations involving the Alabama Court of Civil Appeals consid- quired such proof so as to reduce the im- falsification of employment records ered certain discovery disputes between proper use of bereavement leave. Further- like bereavement-leave requests. The the parties in an outrage lawsuit.5 Plain- more, the plaintiff admitted that he had evidence supporting HMMA’s prof- tiff, Brunson, sued his employer, Big Ten access to the obituary but simply failed to fered reason for discharging Hale was Tires, after injuring his lower back in provide it in a timely manner. uncontradicted evidence of an inde- the line and scope of his employment. pendently sufficient basis for the dis- Applying the elements of a retalia- He also named the workers’ compensa- charge, and HMMA was entitled to a tory discharge case to the facts in Hale, tion carrier, Liberty Mutual, as a defen- summary judgment in its favor. the Alabama Court of Civil Appeals ruled dant under the tort of outrage after the as follows: carrier failed to approve a back surgery Overall, we can learn from the Hale recommended by the authorized treating The facts surrounding Hale’s decision that as long as the employer can physician. More specifically, the plain- discharge support the conclusion point to some policy or procedure, no mat- tiff alleged that Liberty Mutual’s denial that HMMA discharged him for ter how unfortunate the plaintiff’s situa- was “part of a systematic effort by the the proffered reason - violations tion, it can been grounds for a legitimate company to institute policies to dictate of HMMA’s attendance, bereave- termination. In Hale, it seems pretty clear to doctors the treatment that should be ment-leave, and serious-misconduct that the plaintiff had excuses for his ab- received by patients.” Prior Alabama law policies. Hale admitted that he sences; however, he failed to follow the has established as follows concerning the had never provided the requested proper procedures, which mounted up to a tort of outrage in the context of workers’ documentation regarding either his speedier termination than might have oc- compensation: October 2008 absences or his be- curred otherwise. By providing some or reavement leave to HMMA, despite If a workers’ compensation all of the requested documentation, Hale repeated requests. Hale provided no insurance carrier unlawfully denies 20 Birmingham Bar Association


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