What Does “Solely” Really Mean Under Alabama’s Retaliatory Discharge Law?

What Does “Solely” Really Mean Under Alabama’s Retaliatory Discharge Law?

If you read Alabama’s retaliatory discharge statute without knowing the cases interpreting it, one word may make a successful claim seem almost impossible:

“Solely.”

Under Ala. Code § 25-5-11.1, an employer may not terminate an employee “solely because” the employee has instituted or maintained an action to recover workers’ compensation benefits.

At first glance, that appears to impose an extraordinarily difficult burden.  Suppose an employer fires an injured worker and says: “Workers’ compensation had nothing to do with it. We fired him for attendance.”  Does the employer win simply because it has identified another reason?

No.

Alabama’s Supreme Court rejected an interpretation of “solely” that would make the statute so easy to circumvent. Instead, Alabama retaliatory discharge law uses a burden-shifting framework that allows an injured employee to show that the employer’s supposedly legitimate explanation was not the real reason for the termination.

Understanding that distinction is critical to understanding how retaliatory discharge cases are actually litigated in Alabama.

Why Is the Word “Solely” So Important?

Alabama generally follows the employment-at-will doctrine. An employer ordinarily has broad authority to terminate an at-will employee, but the Alabama Legislature created an important exception in § 25-5-11.1:

“No employee shall be terminated by an employer solely because the employee has instituted or maintained any action against the employer to recover workers’ compensation benefits….”

The Legislature’s choice of the word “solely” naturally raises a question: What happens when an employer claims there was another reason for the termination?

That question reached the Alabama Supreme Court relatively early in the statute’s history.  The resulting decision, Twilley v. Daubert Coated Products, Inc., 536 So. 2d 1364 (Ala. 1988), remains one of the foundational decisions in Alabama retaliatory discharge law.

Recommended Reading: Why Does Alabama Law Protect Injured Workers From Retaliatory Discharge?

Twilley: “Solely” Does Not Mean the Employer Automatically Wins by Giving Another Reason

In Twilley, the employer argued for a strict interpretation of “solely.”  The Alabama Supreme Court recognized the problem with that approach.  If an employer could defeat the case simply by presenting any evidence of another reason for the termination, the statutory protection would have little practical value.

The Court expressly rejected that result.

Because § 25-5-11.1 is remedial legislation, the Court explained that it should be liberally construed to accomplish its purpose. It then established the framework for determining whether workers’ compensation was the prohibited reason for the employee’s termination.

In simplified terms, the process works like this:

First: The employee presents a prima facie case that the termination resulted from seeking workers’ compensation benefits.

Second: The employer comes forward with evidence of a legitimate reason for the termination.

Third: The employee has an opportunity to rebut that explanation by showing that the employer’s stated reason is not the true reason, but instead a pretext for an impermissible termination.

That third step is enormously important.

The question isn’t merely: “Can the employer give us another reason?”  The question becomes: “Is that really why the employee was fired?”

What Is a “Pretext”?

In ordinary language, a pretext is essentially an explanation offered to hide the real reason for an action.

Consider an example.

An employee has worked for the same Alabama company for 12 years, he suffers a serious workplace injury and files for workers’ compensation benefits.  Shortly afterward, his supervisor begins complaining about his medical appointments and restrictions.  The company then terminates him for “excessive absenteeism.”

The employer has offered a facially legitimate reason, but that doesn’t necessarily answer the question.

We would want to know: Were the absences actually excessive?

Were some of them authorized workers’ compensation medical appointments?

How had the company treated absences before the injury?

What does the written attendance policy actually say?

Did the company follow that policy?

Were other employees with comparable attendance records terminated?

Did supervisors have discretion to excuse absences?

Did anyone express frustration about the workers’ compensation injury?

Did the employer consistently identify attendance as the reason for termination?

And when did the attendance problem supposedly begin?

Those facts can help determine whether “attendance” was the actual reason for termination or merely the explanation given afterward.

That is pretext.

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

We will devote a separate article to proving pretext because it is often where an Alabama retaliatory discharge case is won or lost.

Culbreth Made the Rule Even More Important

Four years after Twilley, the Alabama Supreme Court returned to this issue in Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120 (Ala. 1992).  Culbreth is particularly useful because it explains an important nuance in the employee’s burden.  Here, the Court clarified that once an employer produces evidence of a legitimate reason, it is more accurate to say that the employee has the burden of going forward with rebuttal evidence showing that the employer’s stated reason is not true.

And then the Court said something especially important. If the employee’s prima facie case is strong while the employer’s asserted explanation is weak or equivocal, the factfinder may simply disbelieve the employer’s explanation.

That is a critical point.

An injured employee does not necessarily need an email confessing retaliation.  The credibility of the employer’s explanation itself can become part of the case.

Why This Matters in the Real World

Imagine how easy § 25-5-11.1 would be to defeat under a different rule.

An employer fires an injured worker immediately after the employee seeks workers’ compensation benefits.  The employee sues.

The employer responds: “We fired him because he wasn’t a team player.”  Case over.

Or: “Her attitude had changed.”  Case over.

That is not how Alabama law operates.

Culbreth itself recognized the danger of accepting an employer’s facially legitimate explanation too readily. The Alabama Supreme Court reasoned that doing so could significantly undermine the beneficent purposes of § 25-5-11.1 because an employer could almost always identify some apparently legitimate explanation for a termination.

The law therefore permits the employee to challenge whether that explanation is actually true.

But “Solely” Still Matters

This point is equally important.  Twilley did not remove the word “solely” from the statute.

An employee does not win merely by proving: “My employer knew I had a workers’ compensation claim when it fired me.”  Nor does the employee necessarily win by proving: “My employer didn’t like my workers’ compensation claim.”

If the employer proves an independently sufficient, legitimate reason for the termination and the employee cannot produce substantial evidence calling that reason into question, the employer may prevail as a matter of law.

That principle becomes particularly clear in Alabama Power Co. v. Aldridge, 854 So. 2d 554 (Ala. 2002).  Aldridge explained that once an employer presents legitimate reasons for termination, the employee must produce substantial evidence showing that those stated reasons were not the actual reasons for the discharge.

So there are two mistakes we should avoid.

It is incorrect to say: “The employer gave another reason, so there cannot be retaliatory discharge.”

But it is equally incorrect to say: “Workers’ compensation played some role, so the employee automatically wins.”

The evidence must be examined to determine the real reason for the termination.

When Can the Employer’s Reason Win the Case?

Aldridge provides particularly useful guidance.  Here, the Alabama Supreme Court explained that an employer’s stated basis for discharge may be sufficient as a matter of law when the underlying facts are undisputed and there is no substantial evidence showing, among other things, that:

• the reason was applied discriminatorily to employees who filed workers’ compensation claims;
• the stated reason conflicts with the employer’s express termination policy; or
• the employer has disavowed the stated reason or otherwise acknowledged its pretextual nature.

That tells us something important about how these cases should be investigated.  Don’t look only at the reason the employer gives-look at the evidence surrounding that reason.

The Employee Handbook May Matter More Than You Think

Suppose an employer says: “We fired her because company policy requires termination after eight attendance points.”

That sounds straightforward, but:

What if the handbook actually says eight points merely makes an employee eligible for discipline?

What if other employees accumulated ten or twelve points without being fired?

What if management routinely removed points?

What if the employer counted workers’ compensation medical appointments against this employee but did not ordinarily count comparable authorized absences?

What if the company skipped required progressive disciplinary steps?

Now the question isn’t simply whether an attendance policy existed; the question becomes:

Was the employer actually applying that policy—or using it?

That distinction is precisely why company policies and comparator evidence become so important in retaliatory discharge litigation.

Recommended Reading: The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun.  That article will examine all six Aldridge factors, together with temporal proximity, and show how separate pieces of circumstantial evidence can combine to establish causation.

Circumstantial Evidence Is Often the Key

One reason the Twilley framework matters so much is that retaliation is rarely announced openly.  An employer sophisticated enough to know that retaliatory discharge is unlawful is unlikely to write: “Terminate Mary because she filed workers’ compensation.”

Instead, the case may depend upon circumstances.

The employee had excellent evaluations for ten years—and suddenly became an unacceptable employee after the injury.

A supervisor began making negative comments about the employee’s medical restrictions.

The employer didn’t follow its normal disciplinary procedure.

Other employees committed the same alleged violation but weren’t fired.

The employer initially gave one reason for termination but later gave another.

The documents don’t support the stated explanation.

The termination occurred shortly after the workers’ compensation claim.

No one fact necessarily establishes retaliatory discharge, but together, those facts may provide substantial evidence that the employer’s stated explanation isn’t the true one.  That is why Alabama recognizes circumstantial evidence as appropriate proof of the causal connection in these cases. Culbreth, 599 So. 2d at 1123; see also Aldridge, 854 So. 2d at 564-65.

What We Have Learned From Litigating These Cases

The word “solely” can cause both employees and lawyers unfamiliar with this area to undervalue a potential retaliatory discharge case.  It is easy to look at a termination notice saying “attendance,” “insubordination,” or “policy violation” and conclude: There is another reason. The statute says “solely.” There must not be a case.

Our experience has taught us to ask a different question: Does the evidence support that reason?

That can require comparing the termination notice with company policies, attendance records, personnel files, deposition testimony, supervisor statements, treatment of other employees, and the chronology of what occurred before and after the workers’ compensation claim.

Sometimes the stated reason holds up-Sometimes it does not.

Recommended Reading

As we continue this series:

• Can My Employer Fire Me After I File a Workers’ Compensation Claim in Alabama?
• The Aldridge Factors: How Alabama Workers Prove Retaliatory Discharge Without a Smoking Gun
• What Is Pretext in an Alabama Retaliatory Discharge Case?
• Why Timing Matters After an Alabama Workers’ Compensation Claim
• When an Employer Says You Were Fired for Attendance

 

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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