General Electric Co. v. Gilbert

Wendell L. GRIFFEN, Judge.

This appeal arises from a wrongful-discharge suit. Appellee, Lila Gilbert, was discharged by her former employer, appellant, General Electric Company. A jury found that appellant had wrongfully discharged appel-lee in violation of the public policy of Arkansas because she was seeking workers’ compensation benefits. The jury awarded her $79,525.44, plus unspecified pension benefits. The trial court determined appellee’s pension loss to be $1,965.45. Appellant appeals from the denial of its motion for a directed verdict and from the award of damages for pension benefits. We affirm the award of lost wages because the evidence shows that appellee presented a prima facie case of wrongful discharge, but the employer did not prove that it had a legitimate, nondiscriminatory basis for her discharge. However, we reverse with regard to the award of pension benefits because appellee did not specifically prove the amount of pension benefits to which she was entitled.

Appellee began working for appellant in 1973. She was diagnosed with carpal-tunnel syndrome and had surgery for the same in 1992. However, she continued to experience problems with her hands after surgery, and required further treatment. She was terminated in 1993 for being absent for ten days without providing a medical excuse. Appellee eventually settled her workers’ compensation claim against appellant for $6,500 in 1995. She filed a suit for wrongful discharge in May 1996.¹ The case proceeded to trial and appellant now appeals from the verdict and award of damages rendered in the subsequent trial.

Appellee began working for appellant in 1973 as an assembly-line worker. In August 1992, she was diagnosed as having carpal-tunnel syndrome in her left hand. At that time, Dr. C.A. McDaniel, an orthopedic doctor, ordered appellee to avoid work involving repetitive motion. In October 1992, she had carpal-tunnel-release surgery performed on that hand. Appellee received workers’ compensation benefits, including payment for her medical treatment. After her surgery, a Dr. Jobe returned her to work with a ten-pound weight restriction and noted that she was still experiencing ongoing mild to moderate right carpal-tunnel symptoms. She returned to work wearing splints, but was unable perform the job she had been performing. Appellant moved her to a “winding” position because the work was less repetitive.

Appellee saw Dr. McDaniel again in May 1993. He ordered her to avoid repetitive motion work and heavy lifting until she saw Dr. Wood the following week (Dr. Wood replaced Dr. Jobe). Dr. Wood noted that appellee stated that she worked at a position with the minimal amount of repetitive motion possible at her company. He also ordered her to continue to perform light duty work. In June 1993, appellee still suffered pain in her left hand and arm and was diagnosed with possible carpal-tunnel syndrome in her right hand.

Appellee testified that she told Jean Nall, appellant’s union relations specialist, that the winding job was too repetitive, but that Nall indicated that she was unable to move appellee to another position. Appellee continued to work at the winding position although it hurt her hands to do so. Due to difficulty in performing her work tasks, appellee was averaging only 100% of production, while the rest of her co-workers averaged 129% of production. Richard Krafft, appellee’s supervisor, verbally informed her on two occasions that she needed to increase her production. On April 12, 1993, he sent her a letter indicating:

Your output to date has been acceptable on your current job. You have not yet reached the group average after being on your job for several weeks. At the present tíme, I am not placing you on lack of suitable work status. You have the opportunity to improve your production to an acceptable level. Starting immediately, your bottom level will be 100% of the group average. I want to see a 5% increase with each passing week.

I will review your records weekly and follow your progress. If you fail to reach the acceptable levels stated, I will be forced to look into lack of suitable work status for you.

Appellee thought that the letter meant that she would be fired. She took the letter to Tom Scott, her union representative, who informed Krafft that appellee was not required to average above 100%. She thereafter received no further reprimands with regard to her production.

Appellee continued to experience pain, tingling, and swelling with her hands. On June 1, she saw Dr. Mahon, another orthopedist who had previously treated her. He did not release her from work, so she returned to work. She testified that on June 9, she went to Mary Ann Cornish, the company nurse, and showed Cornish that her hands were swollen and told her that she needed to see a doctor.

According to appellee, Cornish told her to wait until Cornish made an appointment through Carol Kriss, appellant’s workers’ compensation representative. Appellee said she went home and called in the next five days and reported to Cornish, who was having problems scheduling the appointment. Appellee also unsuccessfully attempted to contact Kriss. On or around June 16, Cornish left a message on appellee’s answering machine stating that she had an appointment set up for June 23. When appellee returned Cornish’s call, Cornish told her to call in every night to inform the guard that she was not going to be at work.

Appellee stated that one night when she called and informed the guard of her absence, Krafft spoke with her on the phone. He asked how she was doing, and she told him that her hands were getting worse. He also asked if she would be able to come back to work soon, and she told him that she did not know. Appellee informed him that Cornish scheduled a doctor’s appointment for her on June 23. She said Krafft told her to stay home and take care of herself and keep them informed.

On June 16, Cornish received an e-mail from Krafft. His message stated:

I believe Lila Gilbert has been out for the last five working days. I’ve tried to call her, but her number listed in the company records has been disconnected. She calls in each night saying she will not be in, but doesn’t leave a message. Could you please find out how she is doing or if you know, let me know her status? I’ve instructed the guard to get me a telephone number where she can be reached.

Cornish responded to Krafft the same day via e-mail:

What can I tell you about Lila Gilbert? Lila’s chief complaint at this time is “hand pain.” Her medical evaluation in May stated that she should continue her “light duty work.” She requested a change of physicians and had recently been evaluated by a local orthopedist. I have not seen the written report, but a verbal report from our claims administrator indicates that she has been released for work. Lila has requested another appointment with this orthopedist and I will be calling this office today. It appears Lila’s absences are self-imposed. We are working very hard to close this case.

Appellee saw Dr. Mahon again on June 23, 1993. On June 28, 1993, Dr. Mahon sent the following letter to the company that processed workers’ compensation claims for appellee:

Upon the request of Ms. Cornish, the General Electric Nurse, I did again see Ms. Gilbert in the office June 23rd. Examination findings remain unchanged from those previously reported to you. I again advised Ms. Gilbert if she continues to do repetitive activities, probability of recurrence or more difficulty is much greater. We discussed the possibility of her changing jobs. She also wished to have medical release from work, but I advised her this was not possible, as I felt she could continue working.

(Emphasis added.)

On June 24, appellee called to speak with Nall. The purpose of this call is disputed. Appellee maintains she called to report back to work, but appellant notes that in her deposition she stated when she called to inform them that she was off for a week with her cyst, she was fired. However, it is undisputed that appellee was fired when she called on June 24. Nall informed her that she no longer had a job there because she had not called in and had not informed them regarding the reasons for her absences. Nall also told her she was being terminated because she was absent for two weeks without a doctor’s note.

After appellee was terminated, she sought assistance from Scott. He spoke with Nall and told appellee that if she could get a doctor’s note for the two weeks that she was absent, she could return to work. Appellee never submitted a doctor’s note to appellant. Nor did she file a grievance with the union. She settled her workers’ compensation claim with appellant in 1995 and filed a wrongful discharge suit against appellant in May 1996. The case proceeded to trial on November 2, 2000.

In Wal-Mart, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991), the Arkansas Supreme Court recognized that as a matter of public policy, the common-law doctrine of employment-at-will does not bar a suit for wrongful discharge where the former employee alleges that she has been discharged in retaliation for fifing a workers’ compensation claim. In 1993, the General Assembly amended the workers’ compensation statutes to eliminate the Baysinger cause of action. See Ark. Code Ann. § ll-9-107(d), (e) (Repl. 1996). This statute was effective as of July 1, 1993; however, because appellant was discharged prior to July 1, 1993, her Baysinger cause of action was not abrogated by the General Assembly.

The burden of proof to establish a prima facie case of wrongful discharge is upon the employee. See Wal-Mart, Inc. v. Baysinger, 306 Ark. 239, 812 S.W.2d 463 (1991). A prima facie case is made by presenting substantial evidence that the workers’ compensation claim was a cause of the discharge. When an employee has made a prima facie case of retaliation, or wrongful discharge, the burden shifts to the employer to prove that there was a legitimate, non-retaliatory reason for the discharge. See id.

In ruling on a motion for a directed verdict, the trial court must view the evidence that is most favorable to the nonmoving party and give it its highest probative value, taking into account all reasonable inferences deducible from it. See Burns v. Boot Scooters, Inc., 61 Ark. App. 124, 965 S.W.2d 798 (1998). If the evidence is so insubstantial as to require that a jury verdict for the nonmoving party be set aside, then the motion should be granted. If, however, there is substantial evidence to support a jury verdict for the non-moving party, then it should be denied. See id. Substantial evidence is that which is of sufficient force and character that it will compel a conclusion one way or another. It must force or induce the mind to pass beyond a suspicion or conjecture. See id.

We hold that the trial court did not err in denying appellant’s motion for a directed verdict. Appellee was not required to present prima facie evidence that her workers’ compensation claim was the sole factor in her termination, only one factor. See Wal-Mart v. Baysinger, supra. Moreover, to withstand a motion for a directed verdict appellee was only required to raise a reasonable inference that her workers’ compensation claim was a factor in her termination.²

Here, appellee presented evidence that she had filed a workers’ compensation claim for which she was still receiving treatment, that management had displayed an antagonistic attitude toward her injuries, and that she was fired while she was absent for work due to the injuries that led to her workers’ compensation claim. Appellee filed a workers’ compensation claim based upon carpal-tunnel syndrome and her claim was continuing. As early as August 1992, Dr. McDaniel advised appellee to avoid repetitive work and none of appellant’s doctors appeared to have removed this restriction, which is consistent with an ongoing diagnosis of carpal-tunnel syndrome.

Moreover, appellee testified that Dr. Mahon advised her on June 23 against activities involving repetitive motion and advised her to change jobs. Her testimony is corroborated by Df. Mahon’s notes from June 23, which indicate that he again advised appellee that if she continued to perform repetitive activities, “the probability of recurrence or more difficulty is much greater” and that they “discussed the possibility of her changing jobs.” If he again advised her on June 23, then he must have so advised her on at least one prior occasion. Despite these medical orders, however, appellant forced appellee to continue to work at a position that violated her medical restrictions.

Further, there was substantial evidence that management displayed an antagonistic attitude toward appellee. Her supervisor reprimanded her three times with regard to her production level and threatened to place her on lack of suitable work status, which could eventually lead to termination, even though under the union’s rules this threat was unjustified because she was averaging 100% of production. In addition, the correspondence between Krafft and Cornish shows that management knew that she was having problems with her hands, knew that she was calling in as instructed to report her absences, knew that she was absent from work and why, and knew that she was waiting on Cornish to schedule a doctor’s appointment. Additionally, Cornish’s e-mail reflects a less-than-tolerant attitude towards appellee and shows that Cornish felt the need to assure Krafft that appellee’s compensation claim would be resolved soon. Finally, Nall testified that employees who are absent for five days without a doctor’s note receive disciplinary action short of termination. However, -appellee never received any disciplinary action short of termination related to these absences. On these facts, the evidence was sufficient to support the jury’s finding that appellee’s workers’ compensation claim was a factor in her termination.

We also hold that the trial court did not err in denying appellant’s motion for a directed verdict because appellant did not present substantial evidence showing that it had a legitimate, nondiscriminatory basis for discharging appellee. Appellant maintains that appellee was terminated for violating a provision in the “National Agreement” or collective bargaining agreement provision, concerning continuity of service. This section of the agreement states in pertinent part:

Loss of Service Credits and Continuity of Service.

Service credits previously accumulated and continuity of service, if any, will be lost whenever the employee:

Quits, dies, resigns, retires or is discharged.

Is absent from work for more than two consecutive weeks without satisfactory explanation.

Is absent from work because of personal illness or accident and fails to keep the Company notified monthly, stating the probable date of his return to work.

Appellant maintains that appellee was discharged because she violated this provision by missing work for ten consecutive days without obtaining a medical excuse for doing so. The short answer to appellant’s argument is that this provision does not provide any ground for terminating employees. Rather, this provision provides the basis for withholding or granting service credits, which are used to determine an employee’s seniority status with regard to lay-offs, job transfers, reductions in force, work recalls, and accrual of vacation and personal days. Nothing in this provision provides that the employer may terminate employment for missing two consecutive weeks without a doctor’s note, and appellant presented no evidence of any other personnel policy stating that an absence based on medical reasons requires a doctor’s excuse.

Even if the loss-of-service provision provided appellant with a basis for termination, this provision does not specifically require a medical excuse; it only requires a satisfactory explanation. Further, if a satisfactory explanation was required, a jury could have found that one was given, because the evidence shows that management was aware of appellee’s absences and why she was absent.

Cornish maintained that she was unaware that appellee was not working until she received the e-mail from Krafft. However, this assertion is contradicted by Cornish’s testimony that she told appel-lee that she was expected to call in. Cornish knew that appellee continued to have problems with her hands, was absent because she was experiencing problems with her hands, and was awaiting a doctor’s appointment. She instructed appellee to call in, as did Krafft. Further, the e-mail from Krafft shows that he also knew appellant was absent and was calling in.

Appellant argues that appellee cannot have a satisfactory explanation absent a medical excuse where she was absent for medical reasons. However, the evidence in this casé shows that appellant had no policy requiring a doctor’s note for absences in excess of five days and that management was fully apprised of appellee’s absences. We hold that this was substantial evidence to support the jury’s verdict.

While we affirm the denial of appellant’s motion for a directed verdict, we reverse with respect to the award of pension benefits. Although appellee proved her prima facie entitlement to pension benefits, she failed to specifically prove the amount of pension benefits to which she was entitled.

The proper measure of damages in a public-policy wrongful-discharge action is the sum of lost wages from termination until day of trial, less sum of any wages that an employee actually earned or could have earned with reasonable diligence; additionally, an employee may recover for any other tangible benefit lost as a result of the termination. See Sterling Drug, Inc. v. Oxford, 294 Ark. 239, 743 S.W.2d 380 (1988). The party asserting entitlement to damages has the burden to prove the claim. See Milligan v. General Oil Co., 293 Ark. 401, 738 S.W.2d 404 (1987). Damages must not be left to speculation and conjecture. See Pennington v. Harvest Foods, Inc., 326 Ark. 704, 934 S.W.2d 485 (1996).

Appellant concedes that if appellee was entitled to damages, she would be entitled to damages for lost pension benefits from her last day of work to the date of the trial, but maintains that nothing in the evidence submitted by appellee provides a means by which to establish a judgment amount. We agree.

The jury entered an award for “damages of $79.535.44 plus 10% interest plus pension.” Appellee submitted into evidence a check stub dated May 23, 1993, showing her pension gross as of that date of $5,615.58. She testified that she began working for appellee in 1973 and had worked there for twenty years. However, appellee also testified that there were numerous times when she was laid off during that twenty-year period. Although there was no testimony presented as to the means by which appellant calculated appellee’s pension benefits, or whether her pension benefits continued to accumulate during those periods of layoff, the trial judge apparently divided the pension gross by the number of years appel-lee had worked for appellant, resulting in a pro rata figure of $280 per year in pension benefits received. The trial judge then apparently multiplied that figure by the approximate term of the seven-plus years between appellee’s termination and her trial, to reach the figure awarded, $1,965.45.

We hold that the evidence was insufficient to specifically prove the amount of appellant’s lost pension benefits. We recognize that the trial judge attempted to fashion a remedy based on sparse evidence in the record that was related to lost pension benefits. However, in the absence of evidence showing how appellee’s benefits accumulated and whether her pension benefits continued to accumulate during periods of layoff, the trial judge had to assume that appellee continually and uniformly accumulated pension benefits during her twenty-year period of employment. This assumption is not supported by the evidence. Further, we do not believe that remand for reconsideration to the trial judge would be constructive because there is nothing in the record that he has not already considered that would enable him to properly render an award for lost pension benefits.

Therefore, we affirm with respect to the denial of appellant’s motion for a directed verdict, but reverse with respect to the award of lost pension benefits.

Affirmed in part; reversed in part.

Robbins, Neal, Vaught, and Baker, JJ., agree. Pittman, J., concurs. Bird, Crabtree, and Roaf, JJ., dissent.

1 This is the second time these parties have been before this court in matters involving the same suit. Appellee previously appealed the trial court’s grant of summary judgment in appellant’s favor on the basis that she had not exhausted the arbitration/ grievance procedure set forth in the collective bargaining agreement between the employer and the employees’ labor union. In an unpublished case, we reversed and remanded, finding that the trial court erred in finding that the collective bargaining agreement unambiguously required appellee to exhaust her grievance remedy before pursuing a tort claim for wrongful discharge. See Gilbert v. General Elec. Co., No. CA 98-1461, 1999 WL 714654 (Ark. App. Sept. 8, 1999).

2 The dissent argues that we drew unreasonable inferences in concluding that appel-lee proved a prima fade case of wrongful discharge. This argument merely reinforces our holding that the trial court properly concluded that the case should not have been dismissed on a motion for a directed verdict. Whether the evidence reasonably supports an inference is a question of fact for a jury to determine. If reasonable minds can differ about the conclusions to be drawn from a set of facts, as the dissenting opinion vividly demonstrates, then the issue is properly decided by a jury, not on a motion for a directed verdict. See Morehart v. Dillard Dep’t Stores, 322 Ark. 290, 908 S.W.2d 331 (1995). The question we determine on appeal is not whether we agree with the inferences drawn by the jury, but whether the facts support the inferences drawn by the jury. See Burns v. Boot Scooters, Inc., supra.

Further, although the dissenting opinion recognizes that the a prima facie case of wrongful discharge will ordinarily be proved by circumstantial evidence, it ignores the circumstantial evidence in this case by finding no evidence in the record: (1) that appellant disregarded medical orders or forced appellee to continue to work in a job that violated her medical restrictions; (2) to support appellee’s “opinion” that she was terminated because she filed a workers’ compensation claim; (3) that management displayed an antagonistic attitude toward her injuries; or (4) that appellant demonstrated a pattern of terminating employees who filed such claims.

Our opinion clearly sets forth the evidence that appellant disregarded medical orders, forced appellee to continue to work in a job that violated her medical restrictions, and displayed an antagonistic attitude toward her injuries. Further, our opinion clearly declares the evidence supporting an inference that appellee was fired because she filed a workers’ compensation claim. We did not base our holding on appellee’s “opinion” about why she was fired. Finally, while evidence of a pattern of termination against workers’ compensation claimants is certainly proof of an employer’s animus, the dissenting opinion cites no authority requiring a claimant to prove that such a pattern exists in order to meet her prima fade case. The real inquiry is whether there was any evidence creating an inference of retaliation, not whether the employer displayed a pattern of animus toward injured workers seeking compensation benefits.