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Wal-Mart Stores11/21/2003
d in connection with such work. ... Employer's may also expect that employees will diligently oversee the employer's equipment assigned to them. The testimony presented at this hearing indicates that the claimant displayed disregard for those standards of behavior, committing what would be considered misconduct connected with his work. Since the testimony shows that the claimant's employment was terminated as a result of misconduct he would be subject to a disqualification under this section ...."
(Emphasis added.) This decision makes clear that the referee determined that Wal-Mart terminated Hepp's employment because of misconduct on Hepp's part.
In Hepp's retaliatory-discharge action, he must, under Ala. Code 1975, § 25-5-11.1, prove that Wal-Mart's proffered reason for terminating his employment, i.e., misconduct connected with his work, was not the true reason for his termination. The very issue whether Hepp had been terminated because of misconduct, however, was at issue in the unemployment-compensation proceeding. Thus, there is an identity to at least one issue in the two proceedings.
Hepp, however, claims that there is no identity of the issues in this case because, he argues, the referee's determination that he was terminated because of misconduct did not involve a finding as to Wal-Mart's "motive" behind his termination. Specifically, Hepp claims that he is estopped from litigating only the issue whether his act of violating company policy constituted misconduct. He is not, he maintains, precluded from litigating whether Wal-Mart's stated reason for terminating his employment was a pretext for terminating him because he filed a workers' compensation claim. In other words, Hepp claims that while Wal-Mart's "reason" for terminating him has been decided, its "motivation" has not.
In making this argument Hepp is attempting to make a distinction without a difference. The issue decided by the appeals referee was whether Hepp was terminated either for misconduct or for some other reason (for example, retaliation for filing a workers' compensation claim, the reason Hepp argued at the hearing he had been fired). The referee determined that the former was the case -- that Hepp had been discharged by Wal-Mart because of his misconduct. Moreover, the referee, in finding that Hepp had been discharged because of misconduct, necessarily rejected Hepp's claim that he was terminated in retaliation for filing the workers' compensation action. See Smitherman, 743 So. 2d at 447 (holding that it is the employee's burden in an unemployment-compensation proceeding to refute the employer's proffered reason for termination by demonstrating that the employer's reason was a pretext).
Furthermore, the hearing before the appeals referee offered Hepp an adequate opportunity to litigate this issue.
"The Unemployment Compensation Act requires that the appeals tribunal 'afford the parties reasonable opportunity for fair hearing.' Ala. Code 1975, § 25-4-93. The procedure for conducting the hearing is prescribed by regulations of the Department of Industrial Relations. See § 25-4-92(b); see generally Ala. Admin. Code r. 480-1-4-.04 to -.06. Those regulations provide for a hearing at which the parties are afforded the opportunity to present evidence and testimony of witnesses given under oath. See Ala. Admin. Code r. 480-1-4-.04. A party may be represented by an attorney. See r. 480-1-4-.05. The parties are also afforded the opportunity to request that the hearing officer issue subpoenas to compel the attendance of witnesses or the production of documents or other things. See r. 480-1-4-.06."
Smitherman, 743 So. 2d at 446.<
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