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Ex parte Sysco Food Services of Jackson9/24/2004
his dishonesty to his supervisor by falsely denying that he ventured off-route while on company time." Although Calvert argues that Sysco is not entitled to mandamus review, he states in his brief in opposition to Sysco's petition for the writ of mandamus that Sysco representatives "testified in depositions in this case that there were no other reasons [other than Calvert's lying to his supervisor about going off-route and falsifying his transportation log] for Calvert's termination" and that Sysco "will be subject to impeachment" if it attempts to offer any other reasons for Calvert's discharge. (Emphasis in original.) Calvert established in his unemployment- compensation case that he did not commit the dishonest or criminal acts of which he was accused, and for the purposes of this retaliatory- discharge action that factual finding has been established. Thus, Sysco is precluded from arguing that it terminated Calvert because he engaged in the conduct of which Sysco accused him. Sysco may still assert that at the time it discharged Calvert Sysco believed in good faith that Calvert had committed those dishonest or criminal acts, and that, therefore, Sysco did not discharge Calvert "solely because had instituted or maintained an action against [Sysco] to obtain workers' compensation benefits." Tyson Foods, ___ So. 2d at ___. However, if Sysco is precluded from offering in this retaliatory-discharge action the evidence that formed the basis of its belief that Calvert had deviated from his delivery route without permission, that he had lied to his supervisor about it, and that he had falsified his transportation log -- the only reasons it asserts for having discharged Calvert -- the case has been "all but determined." Therefore, pursuant to Ocwen, review by appeal is inadequate and mandamus relief is appropriate.
For the foregoing reasons, I would grant the petition for the writ of mandamus and instruct the trial court to limit its order accordingly.
Nabers, C.J., concurs.
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