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Ford v. Carylon Corporation11/10/2005
not "willing and able" to work because of his injury); Ex parte Usrey, 777 So. 2d 66, 69 (Ala. 2000)(offering as a nonretaliatory reason that the employee sexually harassed a female co-worker); and Culbreth v. Woodham Plumbing Co., 599 So. 2d 1120, 1122 (Ala. 1992)(offering as a nonretaliatory reason that the employee's position had been filled in his absence). Here, however, Video argues that Ford's failure to telephone the company to check on the availability of work constituted a voluntary resignation, thus rendering ยง 25-5-11.1 inapplicable because it deals only with terminations. See, e.g., Kent Corp. v. Hale, 699 So. 2d 954, 958-59 (Ala. 1997) (employee who chose to discontinue his employment could not maintain action for retaliatory discharge). Also, Video argues that, even if Ford's employment was terminated, Ford failed to make a prima facie showing that a retaliatory reason existed for the termination and Video successfully rebutted any prima facie case he might have made that his discharge was retaliatory.
A. Voluntary Resignation
In its brief, Video employs the term "voluntary resignation" to describe two separate incidents. Initially, the term is used to refer to Ford's failure to telephone Video to check on the availability of work beginning on January 25, or at the latest, January 26. Video later uses the same phrase to refer to Ford's failure to challenge in any way the content of the letter he received from Kulbitskas.
Regarding Ford's failure to telephone Video, the following evidence was presented: On January 25, Ford's mother telephoned Video and was told by Keith that there would be no work available for Ford on January 26 and that Video would telephone Ford when work became available. In support of their initial motion for a summary judgment, the defendants offered the "Third Affidavit of John Kulbitskas," the official at Video responsible for Ford's discharge, who stated:
"On or about February 4, I issued a letter to [Ford] regarding his voluntary resignation. When I wrote this letter, to the best of my knowledge, [Ford] had not called to report in as required from January 25, 2002, through February 4, 2002. Moreover, to the best of my knowledge, neither I, nor any other representative of [Video] had relieved [Ford] of this requirement."
Our standard of review compels us to view the facts most favorably to Ford. Hanners, 564 So. 2d at 413. Kulbitskas's statement is inconsistent with adverse inferences that can reasonably be derived from Ford's evidence. Video and Ford disagree as to whether Kulbitskas would have known about the telephone call from Ford's mother to Donnie Keith without also knowing about the instructions Keith gave Ford's mother to pass on to Ford. There is no company record describing the telephone call, and, for all that appears, Kulbitskas could have had the knowledge of Ford's mother's call he acknowledged in his February 4 letter only by having been told about that call by Keith. Under our standard of review, which prohibits credibility judgments and requires merely that we resolve reasonable doubts in Ford's favor, we could reasonably infer from the evidence that when Kulbitskas learned of the telephone call placed by Ford's mother, he also learned what Keith told Ford's mother.
Video's second allusion to a voluntary resignation can be traced to the letter Ford received on February 5 informing him that his failure to telephone in to check on the availability of work constituted a voluntary resignation. Video argues that Ford's failure to respond to the letter from Kulbitskas indicated his agreement with the underlying premise of the letter -- that he had, in fact, resigned. This argument is meritle
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