Key Points

  • The Alabama Supreme Court, 5-4, affirmed a jury verdict holding Envoy Air liable for firing Jada Creagh solely because she filed a workers' compensation claim, in violation of Ala. Code ยง 25-5-11.1.
  • The majority held that the jury could find that manager Brigitte Atkinson, not a Texas HR employee, made the firing decision and created the altered doctor's note used to justify it.
  • The court rejected Envoy's evidentiary challenges, including those to the admission of its original interrogatory answer stating that Creagh had resigned, and held several arguments waived under Rule 28(a)(10), Ala. R. App. P.
  • Because the trial court denied remittitur without stating reasons, the court remanded for written findings on the $250,000 compensatory and $425,000 punitive awards, due within 28 days.
  • Justice Sellers (joined by Justice Parker) and Justice Cook (joined by Justice Wise) dissented, arguing that the HR employee's email directing the firing supplied an independent, nonretaliatory reason.

The Alabama Supreme Court on Friday upheld a jury's finding that Envoy Air Inc. fired a Mobile airport employee because she sought workers' compensation benefits. The court rejected the airline's defense that it dismissed her for turning in an altered doctor's note.

The court split 5-4. Chief Justice Stewart, Justices Bryan, Mendheim and McCool, and Special Justice Richard Minor, a judge of the Alabama Court of Criminal Appeals, joined the unsigned, or per curiam, opinion. The majority affirmed Envoy's liability to Jada Creagh. It sent the jury's $250,000 mental-anguish award and $425,000 punitive award back to the Mobile Circuit Court, which must explain in writing why it refused to reduce them.

The appeal turned on who decided to fire Creagh. Alabama law bars firing an employee "solely because the employee has instituted or maintained any action against the employer to recover workers' compensation benefits." Envoy argued that a human resources employee in Texas made the decision because of the altered note. The majority held that jurors could instead find that Creagh's manager made the decision and created the altered note herself.

Creagh slipped on a set of stairs while working the final flight of the night at Mobile Regional Airport on Oct. 25, 2018, and hurt her shoulder. Her doctor barred her from lifting more than 10 pounds when she returned to work. Creagh testified that her manager, Brigitte Atkinson, had been friendly before the injury but turned cold afterward.

The record contains two versions of a Nov. 30, 2018, return-to-work note. The doctor's copy has two computer-generated X's marking restrictions. The copy Atkinson said Creagh gave her adds three handwritten X's, including one restricting "push/pull" activity. Creagh testified that she did not make those marks. Atkinson flagged the note to Valerine Conerly, a workers' compensation analyst in Texas, who obtained the doctor's version.

Creagh testified that on Dec. 3, 2018, after she complained about not getting help with lifting, Atkinson said she would "find a way to get rid of [her]." On Dec. 28, Johnathan Wilson, an HR employee, emailed Atkinson: "Please suspend the employee immediately, and proceed with off-boarding based upon the above determination." Envoy suspended Creagh pending an investigation and fired her on Jan. 7, 2019, in a letter signed only by Atkinson that cited "falsification of documentation."

Envoy sought judgment as a matter of law, a ruling that the evidence was too weak to go to a jury. The majority pointed instead to Envoy's own discovery response stating that "[t]he plaintiff was terminated by Brigitte Atkinson" and to testimony from an Envoy regional managing director that station managers technically could fire employees. Envoy's position that Atkinson simply followed Wilson's instruction "was an argument to make to the jury," the court wrote.

The roughly 10-day gap between the suspension and the firing also supported a finding that Wilson's email "was not a directive to terminate Creagh's employment," the majority said. The court wrote that on this record it "was either Atkinson or Creagh who created the altered note, which was a question only the jury could resolve."

The court also distinguished Coca-Cola Bottling Co. Consolidated v. Hollander, a 2003 decision favoring an employer that fired a worker it believed had asked a doctor to backdate a note. The majority noted that Hollander was not a decision by a majority of the court and is not binding precedent. Unlike in Hollander, the majority wrote, jurors here could find that the decision-maker "knew that Creagh had not created the altered note."

"Discovery in this case was contentious, to say the least," the court wrote. Envoy's original lawyer, Anthony Fox, provided an interrogatory answer stating that Creagh had resigned voluntarily and later supplied a signature page purporting to bear Conerly's signature. It is undisputed that the page was forged. A special master found Fox responsible for the incorrect answer and called the forgery a "mystery."

In closing argument, Creagh's lawyer asked jurors, "Is that a witness swearing falsely to a material fact?" The trial court found that the remark violated its earlier ruling but denied Envoy's request for a mistrial. It removed the forged page from the exhibit and told jurors that Conerly "never submitted a response to Interrogatory 14 that was sworn to by her."

The Supreme Court rejected Envoy's evidentiary challenges. It concluded that, on the record, the jury never saw the forged page. It held several other arguments waived because Envoy's brief cited rules of evidence without explaining how they applied.

Justice Sellers, joined by Justice Parker, dissented. Justice Sellers wrote that Creagh's theory that her supervisor altered the note "was merely conjecture" and that Creagh offered no evidence that Wilson "had any reason to retaliate against her." Justice Sellers would have reversed and ordered judgment for Envoy.

Justice Cook, joined by Justice Wise, also dissented, calling Alabama's statute "perhaps one of the strictest in the country" because of its "solely because" requirement. "In my view, that unrebutted email, contemporaneous with Creagh's firing, is the linchpin in this case," Justice Cook wrote. "Wilson did not merely recommend termination; he ordered it."

Justice Cook also faulted the majority's reliance on a Fourth Circuit decision under Title VII of the Civil Rights Act and the federal age-discrimination law. That decision said a plaintiff under those statutes need show only that a prohibited characteristic was "a motivating factor."

On damages, the majority applied a 1986 precedent, Hammond v. City of Gadsden, which requires trial courts to state their reasons for granting or denying a remittitur, a court-ordered reduction of a jury award. The trial court's order on Envoy's postjudgment motion said only that the motion "is hereby DENIED."

The trial court has 28 days from the date of the opinion to file written findings on both awards. The Supreme Court has not yet ruled on Envoy's arguments that the awards are excessive and that punitive damages should not have gone to the jury.