# Consolidated Stores, Inc. v. Gargis

> Court of Civil Appeals of Alabama · May 31, 1996 · 686 So. 2d 268

URL: https://www.frixlaw.com/law-library/cases/9938469

## Case

- **Full name:** Consolidated Stores, Inc. v. Shelby Gargis.
- **Court:** Court of Civil Appeals of Alabama
- **Decided:** May 31, 1996
- **Citations:** 686 So. 2d 268; 1996 Ala. Civ. App. LEXIS 435; 1996 WL 292094
- **Precedential status:** Published
- **Opinion:** Concurrence by Monroe
- **Judges:** Crawley, Monroe
- **Cited by:** 34 later opinions in the Frix Law Library

## Citator (automated)

- **Red flag:** Overruled on other grounds by Bleier v. Wellington Sears Company, 2000 Ala. LEXIS 16 (2000).
- Negative treatments: 1
- Distinguished by: 0
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9938469

## How later opinions describe it (automated extraction)

- holding that an employee who, for the purpose of obtaining Social Security disability benefits, asserted that he was disabled could not assert that he was not disabled, for the purpose of prosecuting his retaliatory-discharge claim
- noting that an implicit requirement for establishing a claim of retaliatory discharge is that the "employee must be willing and able to perform the job in order to assert a retaliatory discharge claim"
- holding the doctrine applicable where prior inconsistent position was asserted in a Social Security disability hearing

## Opinion text

I agree that this cause is due to be reversed and remanded; however, I disagree with the majority's holding that the doctrine of inconsistent positions applies in this case. As the majority says, "All of the limitations of the doctrine of inconsistent positions are not met in the present case." Why, then, does the majority go on to conclude that the doctrine applies? Rather than distort the law in an attempt to apply the doctrine regardless of the facts, which, in my opinion, hardly "protect[s] the integrity of the judicial process," this court should hold that, because all of the limitations of the doctrine of inconsistent positions are not met, the doctrine does not apply.
Even so, the evidence of Gargis' prior inconsistent position tends to prove that Gargis was not willing and able to perform the necessary functions of his job, as he now claims. I agree that to prevail on a retaliatory discharge claim, an employee must show that he is willing and able to perform the job from which he was discharged. Because the evidence in this case shows that Gargis was unable to perform his job, I agree that this cause should be reversed and remanded. Therefore, I concur specially. *Page 278

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9938469. Public record. Not legal advice.