Court's ruling favors ex-Wal-Mart worker

In Tyson suit, ex-employee also wins

Former employees of the two largest Arkansas-based corporations made strides in their legal challenges after a pair of rulings handed down Wednesday by the Arkansas Court of Appeals.

The court sided with a woman fired from Wal-Mart Inc. after selling beer to an early riser, ruling that she was entitled to unemployment compensation.

It also requested more information about a former Tyson Food employee who was given a urinalysis, but no medical treatment, after exhibiting strokelike symptoms. The move gives the plaintiffs the chance to submit a summary of the deposition of their medical witness.

Karen Hubbard worked at a Wal-Mart store for seven years but was fired in May.

According to court filings, Hubbard was rescheduled to start working early morning shifts for the first time since that location started selling alcohol.

When a customer arrived before 7 a.m. to buy some beer, the item wouldn't scan, and Hubbard called for a supervisor.

No supervisor came, she said, and the line continued to grow, so she manually keyed in the price and sold the beer.

Shortly after that, Paula Burns, the Mountain Home location's store manager, showed up and told her that the beer didn't scan because the store didn't sell alcohol before 7 a.m.

The customer was stopped before leaving and refunded his purchase. He came back after 7 a.m. and purchased the beer.

Hubbard was fired for knowingly violating store policy, and the Arkansas Board of Review denied her unemployment benefits because her termination was the result of misconduct.

On Wednesday, the Arkansas Court of Appeals sided with Hubbard, finding that although the employee broke store policy, she did not do so intentionally.

The court shows deference to board of review decisions, Judge M. Michael Kinard noted in the opinion.

"Our function on appeal, however, is not merely to rubber-stamp decisions arising from the board," he said.

The court reversed the board's decision to deny unemployment benefits based on misconduct and remanded the case back to the Arkansas Board of Review for reconsideration.

In a case against Tyson Foods Inc., the court overturned a lower court's summary judgment ruling in favor of the food giant.

It ordered both parties to rebrief their arguments, citing flaws in the earlier court filings.

Timothy Thompson, an 18-year employee at Tyson, was nearing the end of his late shift as a forklift operator on Sept. 30, 2008, when "he became ill as he was attempting to clock out and began exhibiting signs of stroke."

According to Wednesday's ruling, Thompson collapsed and was taken to the nurse station where he was "lethargic and unable to speak clearly." He could not write his own name or remember his home address.

Instead of calling an ambulance, supervisors had Thompson submit to a urinalysis "even though he was confused, unstable, and disoriented as to time and place."

Eventually, a supervisor dropped him off at home, leaving Thompson to walk inside alone and, according to his wife, he "could not speak and was just moving his mouth and waving his hand."

She took him to the hospital, which determined he had suffered a "major stroke." He has since been paralyzed on his right side and is unable to communicate or take care of himself.

Eventually, the Thompsons sued for damages in Jefferson County Circuit Court, arguing that Tyson Inc. failed to follow its own policies for employees fainting, feeling dizzy or suffering a stroke while on the job, a failure that delayed medical treatment.

Attorneys representing the company argued for a summary judgment from Judge Jodi Raines Dennis, maintaining this was really a medical malpractice case and that the Thompsons had failed to provide the kind of expert medical testimony required in malpractice cases.

The Thompsons said they were suing Tyson Food for negligence, not medical malpractice.

They also eventually added a physician, Dr. Bob Gale, as an expert witness but did not include his deposition when responding to Tyson's motion for summary judgment.

Tyson eventually combined several motions into one, and the motions were argued May 22. On July 21, the trial court "entered a motion granting Tyson's motion for summary without explanation," the court of appeals noted.

The Thompsons appealed.

The court noted that, although the Thompsons had failed to brief them on Gale's testimony, it is in the record because Tyson attached it to a motion seeking to disqualify Gale as an expert witness. The Thompsons eventually included Gale's deposition in an addendum but did not summarize it.

Noting that the state Supreme Court rules require this type of material to be "abstracted," the court said the case must be rebriefed.

The Thompsons are currently represented by Willard Proctor Jr., P.A. Tyson Food is represented by Mitchell, Williams, Selig, Gates & Woodyard, P.L.L.C.

Metro on 04/16/2015

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