Todeschi v. Sumitomo Metal Mining Pogo, LLC

• Decision Date: 28 April 2017
• Docket Number: Supreme Court No. S-15542, Supreme Court No. S-15571
• Citation: 394 P.3d 562
• Parties: Nathaniel A. TODESCHI, Appellant and Cross-Appellee, v. SUMITOMO METAL MINING POGO, LLC, Appellee and Cross-Appellant.
• Court: Alaska Supreme Court

394 P.3d 562

Nathaniel A. TODESCHI, Appellant and Cross-Appellee,

v.SUMITOMO METAL MINING POGO, LLC, Appellee and Cross-Appellant.

Supreme Court No. S-15542

Supreme Court No. S-15571

Supreme Court of Alaska.

April 28, 2017

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 job 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 60lbs to 250lbs 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

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