NATHANIEL A. TODESCHI, Appellant and Cross-Appellee,
v.
SUMITOMO METAL MINING POGO, LLC, Appellee and Cross-Appellant.
Appeal
from the Superior Court of the State of Alaska, Third
Judicial District, Anchorage, No. 3AN-11-05283 CI William F.
Morse, Judge.
Michael W. Flanigan, Flanigan & Bataille, Anchorage, for
Appellant/Cross-Appellee.
Sean
Halloran, Littler Mendelson, Anchorage, for
Appellee/Cross-Appellant.
Before: Stowers, Chief Justice, Fabe, Winfree, Maassen, and
Bolger, Justices.
OPINION
MAASSEN, Justice.
I.
INTRODUCTION
A mine
supervisor suffered back injuries over the course of his
career and required several surgeries. His employer
terminated his employment following his request for an
accommodation and his renewed pursuit of a three-year-old
workers' compensation claim. The supervisor sued,
alleging breach of the covenant of good faith and fair
dealing and unlawful discrimination based both on a
disability and on his assertion of the workers'
compensation claim. The employer defended on grounds that the
supervisor could no longer perform the essential functions of
his j ob and had declined an offered accommodation; it also
asserted that it was not liable for the workers'
compensation claim. A jury returned a special verdict finding
the employer liable for breach of the covenant of good faith
and fair dealing and awarding the supervisor $215, 000 in
past lost income, but finding in the employer's favor on
the supervisor's other claims.
The
supervisor appeals. He argues that the superior court erred
when it (1) denied his motion for a directed verdict on
whether he has a disability; (2) denied his motion for
judgment notwithstanding the verdict due to an inconsistency
between the jury's decisions of two of his claims; (3)
declined to give a burden-shifting or adverse inference
instruction based on alleged spoliation of evidence; and (4)
raised a statute of limitations defense by way of a jury
instruction. The employer cross-appeals, arguing that the
superior court erred in excluding one of its witnesses.
Seeing
no error, we affirm. Because we resolve the appeal in the
employer's favor, we do not reach the employer's
cross-appeal.
II.
FACTS AND PROCEEDINGS
A.
Facts
Nathaniel
Todeschi began work at Pogo Mine in November 2005. The mine
was operated by Teck-Pogo, Inc., which later merged with
another company to form Sumitomo Metal Mining Pogo, LLC
(Sumitomo), the defendant in this case. Sumitomo stipulated
in the trial court that, for purposes of employer liability,
it was the operator of Pogo Mine the entire time Todeschi
worked there.
Todeschi
was promoted to a supervisor position after less than a year
at the mine. Sumitomo does not dispute that his work
performance was at least acceptable.
As a
supervisor, Todeschi was responsible for the safety and
production targets of up to ten employees. He directed their
activities, provided support, and ensured their safety and
efficiency. This required that he spend a large part of his
workday underground. According to Sumitomo's job
description, underground mine supervisors could travel up to
30 miles in the mine during one 13-hour shift. For these
purposes Sumitomo provided both trucks and Kubota tractors;
the tractors had minimal suspension, but Sumitomo claimed it
could neither completely eliminate their use nor
significantly improve their suspension.
Todeschi
had a history of job-related back injuries, which he
testified were aggravated whenever he had to drive a tractor.
His first back surgery was before he worked at Pogo Mine. He
had another surgery in 2008, but it was ineffective;
according to Todeschi, he had a herniated disk that broke
into fragments. He testified that in order to continue
working without pain he consumed so many painkillers that his
doctor thought he had cirrhosis of the liver. He had a back
fusion in May 2009 to address the problem.
When
Todeschi returned to work at the mine later that year, Paul
Brunelle, a Pogo general foreman, assigned him to a special
project that kept him at a desk. When the special project was
completed Todeschi resumed his duties as an underground
supervisor. His physician had given him a full medical
release with no restrictions, but, according to Todeschi, the
doctor had not anticipated that he would be required to drive
a tractor again.
Todeschi
soon sent an email to Chad Omaha, another Pogo general
foreman, stating that he would "not operate a Kubota
tractor for any reason" because of the risk of further
injury to his back. He said Sumitomo was "asking [him]
to choose between [his] job and [his] ability to walk and
have a normal life" and he had "made all the
compromises [he was] going to make on the issue." He
asked for other "suitable reliable transportation... so
that [he might] continue in [his] current capacity as a shift
supervisor" and concluded that he would "give it
[until] Monday to see if suitable arrangements are made[;] if
not you do as you choose." Todeschi apparently continued
working his shifts for awhile, using a truck. But in the
meantime, Sumitomo supervisors and the company's
attorney, Sean Halloran, began discussing by email how
Todeschi's injury might be accommodated and whether he
should be terminated instead.
A few
weeks after Todeschi's email ultimatum, Sumitomo sent him
to an independent medical exam with Dr. John Michael James.
Sumitomo's human resources manager, Thomas Brokaw,
provided Dr. James with a newly drafted job description that
included a requirement that mine supervisors be able to
"replace water pumps (lifting 601bs to 2501bs depending
on the pump being replaced) on their own." Dr. James
found the lifting requirement to be unreasonable for even a
healthy employee; he concluded that Todeschi could lift items
up to 50 pounds occasionally, should not lift anything more
than 40 pounds repetitively, and should be provided a truck
as an accommodation.
Having
received Dr. James's evaluation, Sumitomo terminated
Todeschi's employment effective that day on grounds that
he "could not perform his regular job due to strict
lifting limitations and other restrictions as indicated by
[Dr. James]." Sumitomo claims its motivation for firing
Todeschi was his inability to drive a tractor, though the
termination notice did not say so. Todeschi contends, on the
other hand, that Sumitomo fired him because he requested the
accommodation and because he had sought to reopen a
workers' compensation claim he originally filed after his
2007 workplace injury.
Todeschi
testified that he abandoned the 2007 workers'
compensation claim after Kim Witt, the Pogo human resources
manager at the time, told him he would lose his job if he
pursued it. Todeschi testified that he used his private
insurance to pay for the required medical care but refused to
release the workers' compensation insurer, which is why
the claim remained open in 2010. Halloran, Sumitomo's
attorney, testified that Todeschi's renewed pursuit of
the claim was irrelevant to Sumitomo because it predated
Sumitomo's operation of the mine and was covered by its
predecessor's insurance. Todeschi settled the claim for
$80, 000 in 2011, while this suit was pending.
Todeschi
filed his complaint against Sumitomo in February 2011. He
alleged claims for (1) discrimination on the basis of a
disability under AS 18.80.220(a)(1);[1] (2) failure to
accommodate his disability under the same
statute;[2](3) breach of the implied covenant of
good faith and fair dealing; and (4) discrimination under AS
23.30.247(a) based on his assertion of the workers'
compensation claim.[3]
B.
Proceedings
1.
Todeschi's motion for burden-shifting or an adverse
inference instruction based on Sumitomo's alleged
spoliation of evidence
Thomas
Brokaw, Sumitomo's human resources manager at the time of
Todeschi's termination, died before trial and without
being deposed. Sumitomo substituted its attorney Halloran on
its witness list. It explained that Halloran had discussed
Todeschi's termination with Brokaw and could testify
about those discussions, and it waived the attorney-client
privilege to that extent.
Todeschi
opposed Halloran's designation as a witness as untimely,
requesting in the alternative that Sumitomo produce all of
Halloran's written and electronic legal advice for this
case and any similar cases. The superior court allowed
Halloran's testimony but ordered that Sumitomo produce
his billing and phone records for the matter, as well as any
related communications or memoranda. The court restricted the
required production to the period from a month before
Todeschi's email ultimatum to a month after his
termination, but it noted that any records outside that scope
could be reviewed in camera, and it required Sumitomo to
create a privilege log.
Halloran
turned over few emails and phone records and no billing
records. He testified that he never billed Sumitomo during
2010 and that he had destroyed any notes when he changed law
firms; that his former firm inadvertently destroyed all his
emails; and that some of his phone calls used a "voice
over internet protocol" (VOIP) system that did not
create a record of the call. Emails between Halloran and
Brokaw were produced by Sumitomo, but the collection was not
complete; Halloran testified that "Brokaw kept the
emails that he believed mattered to anything, and he deleted
emails that he thought were unimportant."
Todeschi
moved for a shifting of the burden of proof on his
discrimination claims to Sumitomo, or in the alternative a
jury instruction allowing an inference that any missing
email, phone, and billing records of Halloran's would
have supported his case. The superior court denied the
motion, saying only, "I'm not giving a presumption
instruction. I don't think that you've met the burden
for that."
2.
Jury instruction arguably raising a statute of limitations
defense
Todeschi
also objected to a jury instruction, contending that it
invited the jury to apply a statute of limitations defense
that Sumitomo had never pleaded. Instruction Number 12 read:
You have heard testimony that Kim Witt engaged in certain
conduct. Sumitomo cannot be held responsible for Witt's
conduct before 2009. However, if you find that Witt engaged
in certain conduct before 2009 you may (but need not) further
find that it provides context for Sumitomo's actions or
omissions in 2010.
Before
trial Sumitomo had stipulated that "Teck-Pogo Inc. is
the same entity as Sumitomo Metal Mining Pogo, LLC. Although
the name and corporate form were changed when the company was
sold a couple years ago, they are, in fact and law, one and
the same entity. Thus, .. . Kim Witt. . . [was a] Sumitomo
employee[]."
Todeschi
argued that Instruction Number 12 effectively negated
Sumitomo's stipulation of fact. He argued that the
stipulation allowed him to causally connect Witt's
actions in 2008 and his termination in 2010, but the
instruction precluded that argument when it said that
Sumitomo could not "be held responsible for Witt's
conduct before 2009." Sumitomo countered that the
instruction only prevented the jury from finding it liable
for Witt's alleged threat, and Todeschi had not asserted
a claim based on the alleged threat itself; the claim
Todeschi did bring involved his 2010 firing by
Sumitomo, and the instruction specifically allowed Todeschi
to use Witt's alleged threat as background to that event.
The
court overruled Todeschi's objection and gave Jury
Instruction 12.
3.
Directed verdict
At the
close of the evidence Todeschi moved for a directed verdict
on the issue of whether he had a disability. He argued that
Dr. James's evaluation conclusively showed he was
restricted from a class of jobs and therefore had a physical
disability, as defined by federal law, because he was
substantially limited in the major life activity of working.
The argument relied on federal regulations and the Equal
Employment Opportunity Commission's interpretation of the
Americans with Disability Act Amendments Act.[4]
Sumitomo
countered by pointing to Todeschi's full medical release
from his own doctor, differing from Dr. James's more
guarded evaluation. Sumitomo also argued that the jury might
not believe that Todeschi's claimed restrictions were
disabilities: While a lifting restriction might prevent him
from doing some jobs, the one cited in Dr. James's
evaluation was a restriction any average person might have
and did not prevent Todeschi from working at Pogo Mine. And
no evidence suggested that an inability to drive a tractor
could constitute a physical disability; even if it prevented
Todeschi from being a mine supervisor, it did not necessarily
bar him from an entire class of jobs, which is what the legal
definition of "disability" required.
The
superior court found Todeschi's argument that he had a
disability "extremely strong" but denied his motion
for directed verdict, concluding that whether he had a
disability was a question of fact that the jury could
reasonably answer either way.
4.
Motion for judgment notwithstanding the verdict
The
jury was asked to answer four questions about liability. It
answered "no" to three of them: (1) Whether
Sumitomo terminated Todeschi's employment "due to a
disability in violation of [AS] 18.80. [220]"; (2)
whether Sumitomo "fail[ed] to make a reasonable
accommodation so that [Todeschi] could continue his
employment"; and (3) whether "Todeschi's
pursuit of workers' compensation benefits" was
"a substantial factor in Sumitomo's termination of
his employment." The jury answered "yes" to
one liability question: Whether Sumitomo "breach[ed] the
covenant of good faith and fair dealing when [it] terminated
Todeschi's employment." For his one successful claim
the jury awarded Todeschi $215, 000 in past lost income.
Todeschi
moved for a judgment notwithstanding the verdict, additur, or
a new trial. In support of a judgment notwithstanding the
verdict-the only aspect of the motion relevant to this appeal
- Todeschi argued that he had conclusively proven his claim
for discrimination based on disability and that the
jury's special verdict was necessarily inconsistent; he
argued that the jury could only have found a breach of the
covenant of good faith and fair dealing on a view of the
facts that also required it to find disability
discrimination.
The
superior court found no inconsistency in the jury verdict,
however, and denied Todeschi's motion. This appeal
followed.
III.
STANDARDS OF REVIEW
We
review the denial of a motion for judgment notwithstanding
the verdict (JNOV) using the same standard we use when
reviewing a directed verdict.[5] "[B]ecause the
sufficiency of the evidence to support a jury verdict is a
question of law, our review [of motions for JNOV and directed
verdict] is de novo."[6] When we review a trial court's
decision on a motion for directed verdict, "we must
decide 'whether the evidence, when considered in the
light most favorable to the nonmoving party, is such that
reasonable persons could not differ in their judgment.'
"[7] "[Conflicting evidence is not to
be weighed and witness credibility is not to be judged on
appeal."[8] We scrutinize JNOV and directed
verdict motions "under a principle of minimum intrusion
into the right to jury trial guaranteed under the Alaska
Constitution.... If there is any doubt, questions of fact
should be submitted to the jury."[9]
We
review the superior court's decisions of discovery
sanctions, such as spoliation remedies, for abuse of
discretion.[10] "The choice of a particular
sanction for a discovery violation generally is a matter
committed to the broad discretion of the trial
court."[11] "We review a trial court's
findings of fact underlying its discovery sanction
determination for clear error and 'will not declare a
trial court's finding to be clearly erroneous unless,
after a review of the entire record, we are left with a
definite and firm conviction that a mistake has been
made.' "[12] Whether there has been spoliation is
a finding of fact.[13]
"
'Jury instructions involve questions of law to which we
apply our independent judgment.' ' When reviewing a
trial court's denial of a proposed instruction, our
inquiry focuses upon whether the instructions given, when
read as a whole, adequately inform the jury of the relevant
law.' "[14] "An error in jury instructions
is grounds for reversal only if it caused
prejudice."[15] "In evaluating whether there
has been prejudicial error with regard to jury instructions,
we put ourselves in the position of the jurors and
'determine whether the error probably affected their
judgment.' "[16]
IV.
DISCUSSION
A.
Viewing The Evidence In The Light Most Favorable To Sumitomo,
A Reasonable Jury Could Have Found That Todeschi Did Not Have
A Disability.
Alaska's
human rights statutes proscribe certain employment practices,
including "discriminating] against a person in
compensation or in a term, condition, or privilege of
employment because of the person's . . . physical or
mental disability."[17]"Physical or mental
disability" is defined to mean "a physical or
mental impairment that substantially limits one or more major
life activities."[18] "Major life activities,
" in turn, are defined as "functions such as caring
for one's self, performing manual tasks, walking, seeing,
hearing, speaking, breathing, learning, and
working."[19] Todeschi argues that the trial court
should have directed a verdict in his favor on whether he had
a disability within the meaning of these statutes - a
predicate to his disability discrimination claim - because
the evidence at trial demonstrated conclusively that his
lifting restrictions substantially limited him in the
"major life activity" of working.
In
support of this argument, Todeschi points to an example in
the federal regulations implementing the Americans with
Disabilities Act Amendments Act:
[I]f a person whose job requires heavy lifting develops a
disability that prevents him or her from lifting more than
fifty pounds and, consequently, from performing not only
his or her existing job but also other jobs that would
similarly require heavy lifting, that person would be
substantially limited in working because he or she is
substantially limited in performing the class of jobs that
require heavy lifting.[20]
Todeschi
argues that this example and his own situation "match[]
perfectly" and that both Alaska's
anti-discrimination statute and the federal law it
incorporates[21] required the conclusion that he had
a disability as a matter of law.
But
whether the example matches Todeschi's case depends on
facts the jury could reasonably have found in Sumitomo's
favor. First, Sumitomo presented evidence that the lifting
requirement did not prevent Todeschi from performing his
"existing job." The job description given Dr. James
for purposes of the independent medical exam - stating a job
requirement of "lifting 601bs to 2501bs depending on the
pump being replaced"-was in Dr. James's opinion
unreasonable, but Sumitomo contended that as reasonably
interpreted it only described lifting with mechanical aids
and that Todeschi never actually had to lift anything so
heavy by himself in order to perform his job.
Second,
the federal example requires the jury to find that
Todeschi's inability to meet the lifting requirement
barred him from a "class of jobs." He points to the
uncontested expert testimony of a vocational counselor that
he could not work in several categories of jobs, but the jury
could have chosen to assign no weight to that testimony.
Rather, using their own experience or relying on evidence
such as Dr. James's opinion that the lifting requirement
was "fairly unreasonable for a[n] uninjured worker,
" jurors may have found that Todeschi was no more
restricted than an average person. The jury may also have
relied on Todeschi's full medical release with no
restrictions that predated Dr. James's evaluation to
conclude that Todeschi was not precluded from performing a
"class of jobs."
In
short, although Todeschi offered evidence sufficient to
support a conclusion that he was limited in the "major
life activity" of working and therefore had a
disability, the jury was not required to accept it as true in
light of the conflicting evidence. We conclude that the
superior court did not err ...