How Important Is Timing in an Alabama Retaliatory Discharge Claim?

How Important Is Timing in an Alabama Retaliatory Discharge Claim?

An Alabama employee suffers a workplace injury.  The employer learns about the injury and workers’ compensation claim.  Two weeks later, the employee is fired.

Is the timing enough to prove retaliatory discharge?

Not necessarily. But it may be important evidence.

In Alabama retaliatory discharge cases, courts may consider the proximity in time between an employee’s workers’ compensation claim and the termination when deciding whether the two events are connected, but timing becomes considerably more powerful when it is accompanied by other evidence, such as: negative comments about the injury, a sudden disciplinary problem, departure from company policy, different treatment of other employees, or evidence that the employer’s stated reason for termination is false.

That distinction is important because Alabama law requires more than simply proving: “I filed a workers’ compensation claim, and sometime afterward I was fired.”

The real question remains: Why was the employee fired?

What Does Alabama Law Say About Timing?

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.  Because employers rarely admit retaliatory motivation, causation often must be proven through circumstantial evidence.

In Alabama Power Co. v. Aldridge, 854 So. 2d 554 (Ala. 2002), the Alabama Supreme Court discussed several types of circumstantial evidence that may establish a causal connection between a workers’ compensation claim and a termination.

Those include:

• knowledge of the workers’ compensation claim by the people making the termination decision;
• expression of a negative attitude toward the employee’s injured condition;
• failure to follow established company policy;
• discriminatory treatment compared with similarly situated employees;
• sudden changes in the employee’s performance evaluations after the workers’ compensation claim; and
• evidence that the employer’s stated reason for discharge was false.

The Court also recognized proximity in time between the workers’ compensation claim and the discharge as potentially persuasive evidence of a causal connection. Aldridge, 854 So. 2d at 564-65.

Recommended Reading: The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun  Our earlier article examines each of these circumstances separately and explains how they can fit together to establish causation.

Why Does Timing Matter?

Consider two hypothetical situations.

In the first, an employee files a workers’ compensation claim and is terminated the following day despite having no prior disciplinary problems.

In the second, an employee files a claim, continues working without incident for four years, and is then terminated after an undisputed serious policy violation.

The timing does not decide either case, but common sense tells us that the first situation calls for considerably more investigation into whether the workers’ compensation claim and the termination were related.

Timing Alone Is Generally Not Enough

This is an important limitation.

In Aldridge, the Alabama Supreme Court made clear that mere temporal proximity between the workers’ compensation claim and the termination is not, by itself, sufficient evidence of retaliatory discharge where the employer has established an independently sufficient legitimate reason for the discharge and there is no substantial evidence of pretext.

That means an employee ordinarily cannot establish a case merely by showing: “I filed for workers’ compensation on March 1 and was fired on March 15.”  Those dates are important, but we still need to ask what happened between them.

What reason did the employer give?

Is that reason supported by the evidence?

Was company policy followed?

How were other employees treated?

Did the employee’s performance suddenly become an issue?

Did anyone express hostility toward the injury?

Did the people making the termination decision know about the workers’ compensation claim?

The closer the termination is to the protected activity, the more natural those questions become.

What Happened Between the Injury and the Firing?

This is where a timeline can become extremely valuable.  Suppose an employee’s history looks like this:

January 3: Employee suffers an on-the-job back injury.

January 4: Employee reports the injury.

January 8: Employer sends employee for authorized medical treatment.

January 12: Doctor imposes lifting restrictions.

January 15: Supervisor complains about having to accommodate those restrictions.

January 19: Employee receives first disciplinary warning in eight years.

January 25: Employee attends an authorized workers’ compensation medical appointment.

January 26: Supervisor complains about the employee missing work for medical treatment.

February 2: Employee receives another disciplinary warning.

February 5: Employee is terminated for “poor performance.”

Now compare that with this statement:

“I was injured in January and fired in February.”  Both statements describe the same chronology, but the detailed timeline tells us much more.  The termination did not merely occur after the workers’ compensation claim.  Other things allegedly changed after the workers’ compensation claim as well.

That is where temporal proximity can become much more significant.

Timing Plus a Negative Attitude Toward the Injury

One of the Aldridge circumstances is the employer’s expression of a negative attitude toward the employee’s injured condition.  Suppose a supervisor says “These doctor appointments are becoming a problem.”

Two weeks later, the employee is fired.

The timing gives the statement context.

But the two pieces of evidence together may be more significant than either one standing alone.  That is the recurring lesson with circumstantial evidence.

Timing Plus a Sudden Change in Performance

The same principle applies to performance evaluations.  An employee has excellent evaluations for ten years.  The employee gets hurt.  Within weeks, the supervisor begins documenting performance problems.  Two months later, the employee is fired.

The relevant question isn’t merely “How soon after the workers’ compensation claim was the employee fired?”  It is also “When did the employer first begin claiming there was a performance problem?”

That can be an extremely important distinction.

If the employer says the employee had been a performance problem for years, we should expect the records to support that assertion.  If the problems appear in the personnel file only after the workplace injury, the chronology deserves closer examination.

This is why Aldridge specifically identifies sudden changes in an employee’s work-performance evaluations following a workers’ compensation claim as potentially relevant circumstantial evidence.

Timing Plus Failure to Follow Company Policy

Timing can also make a departure from established company policy more significant.

Imagine an employer has used progressive discipline for years.  An employee files a workers’ compensation claim.  Two weeks later, the employee allegedly violates a rule.

Instead of following the normal progressive disciplinary process, the company immediately terminates the employee.

Again, neither fact necessarily proves retaliation, but together they raise questions:

Why was normal policy not followed?

Who made that decision?

Was the decision-maker aware of the workers’ compensation claim?

Were other employees treated differently?

Was immediate termination actually authorized by the policy?

That is why Aldridge identifies failure to adhere to established company policy as another potentially important circumstance.

Recommended Reading: What Is Pretext in an Alabama Retaliatory Discharge Case?  As we discussed in the previous article, the employer’s explanation should be tested against its policies, records, witnesses, treatment of other employees, and the chronology surrounding the termination.

Timing Plus a False or Changing Explanation

This can be particularly powerful.

An employee files a workers’ compensation claim, and shortly afterward, the employer terminates the employee.

The supervisor initially says: “We don’t have enough work.”

Later, the employer says “It was attendance.”

During litigation, the explanation becomes “Actually, it was misconduct.”

Now the issue is not merely close timing-it is close timing combined with changing explanations.

In Flint Construction Co. v. Hall, 904 So. 2d 236 (Ala. 2004), the Alabama Supreme Court considered evidence that the employer gave different reasons at different times for the employee’s discharge. The Court concluded that the jury could infer from the shifting explanations that the asserted reasons were pretextual.

The chronology matters.

How Much Time Is “Too Much Time”?

There is no simple Alabama rule that says: Thirty days = retaliation or Six months = no retaliation.

Retaliatory discharge cases are too fact-specific for that.

A very short period can strengthen an inference of causation.  A longer period may weaken that inference, but the entire chronology matters.

For example, an employee might suffer an injury and continue working for several months while receiving treatment. The employer might tolerate the situation until the doctor imposes permanent restrictions, surgery is scheduled, the employee retains counsel, or the workers’ compensation claim becomes more significant.

If the employee is terminated shortly after that event, simply counting the number of months from the original accident may miss the most important part of the chronology.

This is why we should ask not merely “When was the accident?” but also:

• When did the employer learn the injury was serious?
• When did restrictions begin?
• When was surgery recommended?
• When did the employee begin missing work for treatment?
• When did the employer learn a workers’ compensation claim was being pursued?
• When did management’s attitude allegedly change?
• When did discipline begin?
• When was the decision to terminate actually made?

Those dates can tell a much more meaningful story.

Preserve Evidence of the Chronology

An injured worker who believes a termination may be connected to a workers’ compensation claim should preserve anything that helps establish when events occurred.

That may include:

• text messages;
• emails;
• disciplinary notices;
• performance evaluations;
• medical work excuses;
• work restrictions;
• appointment notices;
• letters concerning the workers’ compensation claim;
• termination paperwork; and
• personal notes identifying important conversations and when they occurred.

Dates that seem unimportant immediately after a termination can become extremely significant when the entire chronology is reconstructed later.

Timing Is a Piece of the Puzzle

Temporal proximity matters in Alabama retaliatory discharge cases, but its importance should neither be exaggerated nor ignored.

Close timing alone does not automatically prove retaliatory discharge.

What makes timing particularly significant is what surrounds it.  A claim followed immediately by a legitimate, undisputed reason for termination may not establish retaliation.  But a claim followed closely by hostility toward the injury, sudden discipline, departure from company policy, different treatment of other workers, and an explanation that does not withstand scrutiny presents a very different picture.

That brings us back to the central question underlying this entire series:

Why was the employee really fired?

Timing can help answer that question, but it usually becomes most valuable when it helps connect the other pieces of evidence together.

Recommended Reading

For more on how these cases are proven:

• The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun
• What Is Pretext in an Alabama Retaliatory Discharge Case?
• What Does “Solely” Really Mean Under Alabama’s Retaliatory Discharge Law?
• 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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