Todeschi v. Sumitomo Metal Mining Pogo, LLC

         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 ...