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Wal-Mart Stores11/21/2003
ver, she was partially disqualified from receiving unemployment compensation, under Ala. Code 1975, § 25-4-78(3)(c), because she had been terminated for misconduct. Smitherman, 743 So. 2d at 444. An appeals referee affirmed the decision partially disqualifying her from benefits. Smitherman did not appeal to the circuit court, and the referee's decision became final. Id.
Before any ruling on her unemployment-compensation claim became final, Smitherman filed a retaliatory-discharge action against Wal-Mart in the circuit court, under Ala. Code 1975, § 25-5-11.1. Wal-Mart later moved for a summary judgment, arguing that Smitherman was collaterally estopped from asserting a retaliatory-discharge claim. The trial court denied the motion for a summary judgment, and this Court accepted an interlocutory appeal under Rule 5, Ala. R. App. P. Smitherman, 743 So. 2d at 444.
This Court held that all of the elements of collateral estoppel were met in Smitherman's case: the parties were the same, and both the unemployment-compensation-benefits case and the retaliatory-discharge action required litigation of one common issue -- namely, the reason underlying Smitherman's discharge. Smitherman had an adequate opportunity to litigate this issue in the proceeding before the appeals referee, and she knew in that proceeding that Wal-Mart was claiming that she had been terminated for misconduct. Additionally, the appeals referee made clear in his final decision that the reason for Smitherman's termination was actually determined, and that such a determination was necessary in the unemployment-compensation case. Therefore, we held that Smitherman was collaterally estopped from relitigating in her retaliatory-discharge action the reason for her discharge. Smitherman, 743 So. 2d at 448. For this reason, Wal-Mart was entitled to a summary judgment on Smitherman's retaliatory-discharge claim.
Under the rationale of Smitherman, Hepp's retaliatory-discharge claim is likewise barred by the doctrine of collateral estoppel. First, there is no dispute that the parties are identical. Second, the issue whether Hepp was terminated for misconduct was the issue litigated and decided in his unemployment-compensation-benefits case before the appeals referee. As we noted in Smitherman, the employee has the burden in an unemployment-compensation case of proving that he is entitled to benefits:
"Under Alabama's Unemployment Compensation Act, a claimant has the burden of proving that he or she is eligible to receive benefits under Ala. Code 1975, § 25-4-77, and that he or she is not disqualified from receiving benefits by § 25-4-78. See Davenport v. State Dep't of Indus. Relations, 692 So. 2d 851, 852 (Ala. Civ. App. 1997). '"The claimant assumes the risk of nonpersuasion."' State Dep't of Indus. Relations v. Downey, 380 So. 2d 906, 908 (Ala. Civ. App. 1980) (quoting Department of Indus. Relations v. Tomlinson, 251 Ala. 144, 145, 36 So. 2d 496, 497 (1948)). To be eligible under § 25-4-77(a), a claimant must (1) file a claim for each week's benefits; (2) register for work at, and thereafter continue to report at, the state employment office; and (3) be able to work and be available for work. Under § 25-4-78(3)c., a claimant is partially disqualified from receiving unemployment-compensation benefits if he or she was discharged for misconduct committed in connection with work."
Smitherman, 743 So. 2d at 445.
The appeals referee's decision in Hepp's case states, in part: "Section 25-4-78(3)(c) ... provides that an individual shall be disqualified for total or partial unemployment if he was discharged from his most recent bona fide work for misconduct committe
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