Terminated employees who sue often file claims for unlawful discrimination and breach of the covenant of good faith and fair dealing. Recently, the Alaska Supreme Court analyzed how a claim for breach of the covenant of good faith and fair dealing relates to a disability discrimination claim. The court also considered when evidence is sufficient to conclude that an employee is disabled.
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Bad Backs Don’t Do Well in Mines
In 2005, “Benji” began working at Pogo Mine, which was operated by Sumitomo Metal Mining Pogo, LLC. He was quickly promoted to supervisor, and the position required him to spend significant time underground. He could travel up to 30 miles in the mine during one shift. He rode a tractor with minimal suspension to cover that much ground.
Benji had a history of back issues, which the tractor aggravated. He had unsuccessful back surgery in 2008. In 2009, he underwent surgery again to fuse a portion of his spine. His physician provided a full medical release without restrictions, which Benji claimed was based on an assumption that he would not be required to drive the tractor again.
When Benji returned to work, he was initially assigned to a project that kept him at his desk. But when the project was complete, he was instructed to resume his duties underground. He told Sumitomo that he would not drive a tractor for any reason because of concerns that he would further injure his back. He issued an ultimatum by demanding suitable transportation (such as a truck) before he would resume working underground.
In response to Benji’s ultimatum, Sumitomo sent him to an independent medical examiner and provided a newly drafted job description that said mine supervisors had to “replace water pumps (lifting 60lbs to 250lbs depending on the pump being replaced) on their own.” The medical examiner concluded that the lifting requirement was unreasonable even for a healthy employee and that Benji could lift 50 pounds only occasionally and should be provided a truck as an accommodation.
Sumitomo then terminated Benji because he “could not perform his regular job due to strict lifting limitations and other restrictions as indicated by [the medical exam].” Benji sued, alleging, among other things, disability discrimination under Alaska law and breach of the implied covenant of good faith and fair dealing.
At the close of evidence during the trial, Benji asked the judge to rule that he had a disability. The superior court denied his motion. A jury ultimately found that Sumitomo did not terminate Benji because of a disability, but that the company nonetheless breached the covenant of good faith and fair dealing.
Both Benji and Sumitomo appealed. Benji argued that the superior court erred by denying his motion to rule that he had a disability. He also argued that the jury’s verdict that Sumitomo breached the covenant of good faith and fair dealing required it to find that the company engaged in disability discrimination.
It’s Hard to Show Disability
The supreme court found no error in the superior court’s decision to deny Benji’s motion to rule that he had a disability. The court explained that the jury could reasonably have found that he was not disabled for two reasons. First, Sumitomo presented evidence that the lifting requirement in the job description could be reasonably interpreted as describing lifting with mechanical aids, meaning Benji was not required to lift 60 to 250 pounds by himself. Under that interpretation, he was capable of performing his job.
Second, the jury could have chosen to give no weight to a vocational expert’s uncontested testimony that Benji was unable to perform several categories of jobs. Instead, the jury could have relied on the medical examiner’s opinion that the lifting requirement was unreasonable even for a healthy employee and concluded that Benji was not restricted more than the average person. The jury also could have relied on Benji’s medical release and concluded that he could work without restrictions.
Curiously, the court focused only on one statutory definition of “disability”—an impairment that substantially limits a major life activity. It did not discuss an alternate statutory definition that includes cases in which employees are misclassified as having a qualifying impairment. The alternate definition appeared to be relevant in this case since Sumitomo terminated Benji ostensibly because the lifting limitation and other restrictions prevented him from doing his job. In other words, the jury could have reasonably concluded that Benji could work without restrictions and that he was “disabled” under the statute because Sumitomo misclassified him as impaired. It is not clear whether Benji ever raised that argument.
Covenant of Good Faith and Fair Dealing
The supreme court rejected Benji’s argument that the jury’s verdict on his disability discrimination claim was inconsistent with its verdict on his claim for breach of the covenant of good faith and fair dealing. The covenant prohibits employers from terminating an employment contract by acting in bad faith or in a manner a reasonable person would regard as unfair. The court explained that the jury could have found that Benji did not have a disability and that Sumitomo still breached the covenant by creating a false job description that gave the company an excuse to fire him.
Alternatively, the jury could have found that Benji did have a disability but was terminated lawfully because driving a tractor—something he could not do—was an essential function of the job and a reasonable accommodation was not available. However, the court did not explain what the unfair or bad-faith action needed to support a finding that Sumitomo breached the covenant would be. Drafting a job description with false lifting requirements would not appear to be relevant because the requirements would have had nothing to do with Benji’s termination under that scenario. Todeschi v. Sumitomo Metal Mining Pogo, LLC, No. 7167 (April 28, 2017).
Takeaways
The supreme court affords juries significant leeway in their verdicts. If there is a plausible theory for upholding a jury’s verdict, the court will not upset it. Also, this case shows that an employee may have a valid claim for breach of the covenant of good faith and fair dealing even if he was terminated for a reason that does not violate employment discrimination laws.
Tom Daniel, editor of Alaska Employment Law Letter, can be reached at tdaniel@perkinscoie.com.