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You can search the entire site. or go to the recent opinions, or the chronological or subject indices. Olson v. Teck Cominco Alaska, Inc. (09/29/2006) sp-6052
Notice: This opinion is subject to correction before
publication in the Pacific Reporter. Readers are
requested to bring errors to the attention of the Clerk
of the Appellate Courts, 303 K Street, Anchorage,
Alaska 99501, phone (907) 264-0608, fax (907) 264-0878,
e-mail corrections@appellate.courts.state.ak.us.
THE SUPREME COURT OF THE STATE OF ALASKA
| RICHARD K. OLSON, | ) |
| ) Supreme Court No. S- 11755 | |
| Appellant, | ) |
| ) Superior Court No. 2KB-03-39 CI | |
| v. | ) |
| ) | |
| TECK COMINCO ALASKA, INC., | ) O P I N I O N |
| d/b/a RED DOG OPERATIONS, | ) |
| ) No. 6052 - September 29, 2006 | |
| Appellee. | ) |
| ) | |
Appeal from the
Superior Court of the State of Alaska, Second
Judicial District, Kotzebue, Richard H.
Erlich, Judge.
Appearances: C.R. Kennelly, Law Office of
C.R. Kennelly, Anchorage, for Appellant.
Sean Halloran, Hartig, Rhodes, Hoge &
Lekisch, P.C., Anchorage, for Appellee.
Before: Bryner, Chief Justice, Matthews,
Eastaugh, Fabe, and Carpeneti, Justices.
BRYNER, Chief Justice.
I. INTRODUCTION
Richard Olson was employed at the Red Dog mine. He
frequently missed work without justification, so his employer,
Teck Cominco Alaska, Inc., placed him on a step discipline plan.
Olson continued to miss work, and Teck Cominco fired him for
violating the plan. But shortly before Teck Cominco took this
action, Olson had filed a workers compensation claim alleging
that he had been injured by exposure to lead on the job and
needed to be treated for this condition. Teck Comincos insurer
had conducted an independent medical examination, which concluded
that Olson did not have lead poisoning and required no treatment.
After being fired, Olson sued Teck Cominco, alleging that it had
wrongfully discharged him in retaliation for filing the workers
compensation claim. The superior court dismissed Olsons claim on
summary judgment; Olson appeals. Because the evidence in the
record fails to support an inference of retaliation and
establishes that Teck Cominco justifiably fired Olson for
absenteeism, we affirm.
II. FACTS AND PROCEEDINGS
Richard Olson worked as a welder for Teck Cominco
Alaska, Inc., at the Red Dog Mine near Kotzebue. His schedule
called for him to work two weeks on at the mine and take one week
off, when he could return home to Anchorage.
Olson had a long history of chronic depression and
alcohol abuse; his condition was not work related but frequently
caused him to miss work. On January 2, 2002, because of Olsons
absences, Teck Cominco placed him on a step discipline program
called the Performance Management Plan. This plan was part of a
standard program that Teck Cominco regularly used to enforce its
absenteeism policies. The plan allowed Olson to take no more
than five days of unplanned absence[] during 2002; each day of
unplanned leave beyond the five-day limit would subject Olson to
progressively increasing disciplinary steps, culminating in
termination if he exceeded the limit by four days. The plan
defined unplanned absences as any absence other than pre-approved
paid time off and various types of specifically listed absences
such as bereavement leave, workers compensation leave, and Family
Medical Leave Act (FMLA) leave.
By early July 2002 Olson had used two of his five
unplanned absences. He had also used up all but ten of the
eighty-four FMLA leave days that he was eligible to receive
between October 2001 and September 2002. In addition, Olson had
just taken fourteen days of workers compensation leave for a work-
related back injury, but his treating physician, Dr. Gary Polson,
had cleared him to return to work on July 3.
On July 2, 2002, a naturopathic doctor in Anchorage,
Torrey Smith, wrote a letter to Red Dog Mine reporting that he
had diagnosed Olson as having an unusually high level of lead
accumulation in his urine, a condition resulting in anemia and
fatigue. Naturopath Smith said that he was referring Olson to
Nurse Practitioner Bethany Buchanan, a chelation specialist in
Anchorage. According to Naturopath Smith, Olson would receive
two or three chelation treatments over the next three weeks but
should be able to return [to work] on his next work cycle.
The following day, Olson visited Nurse Buchanan, who
examined him and prepared a report confirming Naturopath Smiths
diagnosis of lead toxicity. Nurse Buchanan recommended that
Olson receive about thirty chelations over a period of several
months; but in keeping with Naturopath Smiths view, Nurse
Buchanan also made it clear that these treatments would not
prevent Olson from returning to his job: I plan to have him get
chelation while hes off work, 1-3 IVs per week, and hell continue
this until he has received about 30 chelations.
When Nurse Buchanan wrote this letter, Olson had just
been released back to work by the physician who had been treating
his back injury, Dr. Polson. Olsons work schedule called for him
to work a two-week shift at Red Dog beginning July 4. But Olson
took his next ten days, July 4-13, as FMLA leave. Meanwhile,
Olson had sent Teck Comincos human resources director, Steven
Lindberg, copies of letters written by Naturopath Smith and Nurse
Buchanan. As already mentioned, both letters indicated that
Olson could be treated during his regular time off in Anchorage
and would not need to miss regularly scheduled work.
On July 12, Lindberg telephoned Olson to remind him
that his remaining FMLA leave would be used up if he missed work
again on July 13, and to warn him that if he continued to miss
work through July 17 the end of Olsons scheduled shift he would
accumulate four new unexcused absences, which would put him in
the first disciplinary step of his plan. In response, Olson told
Lindberg that he was being treated for metal toxicity and asked
Lindberg to contact Nurse Buchanan for details. Lindberg called
Nurse Buchanan later that day (July 12); she confirmed that she
was giving Olson chelation treatments for metal toxicity, but
according to Lindberg, she also was very clear in telling me that
Mr. Olson did not have to miss any work to receive his
treatments.
Lindberg called Olson back the following day, July 13,
to make sure Olson understood Nurse Buchanans position that Olson
did not need to miss work. Olson responded that he nonetheless
planned to file a workers compensation claim as a result of his
lead poisoning and wanted to stay in Anchorage for his
treatments. Accordingly, Olson asked Lindberg to credit all
future absences as workers compensation leave. Lindberg then
advised Olson not to put all of his eggs in a basket, warning
that if Olsons condition turned out not to be covered by workers
compensation, Olson would end up out of planned days on his
attendance control plan. Olson replied that he understood, and
appreciated Lindbergs candor.
Olson continued to miss work from July 14 through July
17, the last four days of his shift. Teck Cominco counted these
days as unplanned absences because July 13 had been Olsons last
available day of FMLA leave. The absences on July 14, 15, and 16
used up the three remaining days of the five unplanned absences
allotted to Olson under his performance management plan; so Teck
Cominco counted July 17 as his first unplanned absence exceeding
the five-day limit, thus placing him on step 1 of the discipline
program.
Olsons next work shift was scheduled to run from July
25 through August 7. He worked at the mine as scheduled, and
then took his regular break. Olsons next scheduled shift began
on August 18. He failed to report for work that day and also
missed the following two days, August 19 and 20. These three
unplanned absences caused Olson to progress from step 1 to step 4
of his discipline plan, which provided for termination. After
Olson failed to report to work on August 20, Teck Cominco
immediately suspended him pending review for termination as of
August 21.
Meanwhile, because Olson had told Lindberg that he
would seek workers compensation for his exposure to lead, Teck
Comincos insurer had made arrangements for an independent
medical examination of Olson by a medical toxicology specialist,
Dr. Brent Burton. On August 14, 2002, Dr. Burton reported that
his examination revealed no evidence of lead toxicity and no need
to treat that condition: In summary, the report concluded, Mr.
Olson is a welder who experienced a modest exposure to lead
during the course of his work. He does not have any evidence of
illness related to lead intoxication. The treatment[s] presently
provided by his naturopath and nurse practitioner are
inappropriate and ineffective and not warranted for Mr. Olsons
condition.
Based on Dr. Burtons report, Teck Comincos insurer
determined that it would controvert Olsons workers compensation
claim; it notified Teck Cominco of this decision in mid-September
and sent Lindberg a copy of Dr. Burtons report, which Lindberg
received on September 16, 2002. Because, in Lindbergs view,
[n]othing in Dr. Burtons report suggested . . . that there was
any reason for Mr. Olson to have been absent from work, Lindberg
immediately forwarded the information to Teck Comincos general
manager, Robert Jacko, who made the decision to terminate Olson
in accordance with Olsons performance management plan.
That same day, September 16, Lindberg sent Olson a
letter notifying him that he had been terminated, effective
August 21, 2002, for violating his plan. Lindbergs letter
explained that this decision was supported by Dr. Burtons report:
In our conversation on Saturday, July
13, 2002, you requested an application for
Workers Compensation coverage for all
absences from July 14 forward. If
substantiated, the Workers Compensation claim
would have had the effect of converting your
unplanned absences to planned absences and
eliminating the attendant penalties. As of
today however, Teck Cominco was notified by
Eagle Insurance that the Workers Compensation
claim was being terminated. This action was
based on the examining physician for the
Workers Compensation claim determining that
you do not have a bona fide work related
injury. Therefore, the absences associated
with the Workers Compensation claim are
deemed to be unplanned pursuant to the terms
of your Performance Management Plan.
You were aware of the applicability of
your Performance Management Plan to your work
with Teck Cominco and you expressed an
understanding of the mechanics of your
Performance Management Plan, not only when it
was initiated but also in our phone
conversation of Saturday, July 13, 2002, when
we discussed the specific dates on which your
unplanned absences would result in Step
Discipline and termination. While
regrettable, this termination was anticipated
by you if a work related injury was not
substantiated.
After receiving the termination letter, Olson sued Teck
Cominco for wrongful discharge, alleging that the company had
improperly fired him in retaliation for asserting a workers
compensation claim. Teck Cominco moved for summary judgment,
insisting that it terminated Olson for missing work in violation
of his performance management plan, not as retaliation for his
workers compensation claim. In support of its motion, Teck
Cominco submitted affidavits from Lindberg and Jacko, copies of
relevant business and medical records, and evidence that Teck
Cominco obtained through discovery from Olson, including a
transcript of Olsons deposition.
Lindbergs affidavit summarized Olsons history of poor
attendance, and explained Teck Comincos step discipline program
and the details of Olsons performance management plan. It also
summarized Lindbergs various discussions with Olson, Nurse
Buchanan, and Naturopath Smith. The affidavit unequivocally
denied Olsons charge of retaliation, emphasizing that Olson had
been fired only for unexcused absenteeism, not for filing a
claim, and that he was fired on this ground only after all
relevant treatment providers Dr. Burton, Nurse Buchanan, and
Naturopath Smith had confirmed that Olsons alleged lead
poisoning did not require him to miss any work beyond the
absences allowed him under his Performance Management Plan. In
addition to his affidavit, Lindberg submitted contemporaneous
notes documenting his discussions with Olson, Naturopath Smith,
and Nurse Buchanan.
Jackos affidavit supported Lindbergs. Jacko disclaimed
any intent to retaliate against Olson for filing a claim,
averring that Teck Comincos step discipline program had been
consistently and systematically applied to enforce absenteeism
policies. Without any exception[.] He emphasized that he had
terminated Olson based solely upon the fact that Mr. Olson had
been absent from work for an excessive number of days. Jacko
also pointed out that he made the decision to fire Olson only
after determining that Dr. Burton had found no work-related
injury and that Mr. Olsons Naturopath, Torrey Smith, and Mr.
Olsons Nurse Practitioner, Bethany Buchanan, had each confirmed
that Mr. Olson was not required to miss any work as a result of
the medical condition that they were treating.
Olson opposed Teck Comincos summary judgment motion but
submitted no evidence to support his opposition. In reply to the
opposition, Teck Cominco argued that the undisputed facts
established that Olson was terminated solely for absences
unrelated to any alleged injury.
The superior court granted Teck Comincos motion for
summary judgment, finding Teck Comincos reply to be dispositive.
Olson appeals.
III. STANDARD OF REVIEW
A party moving for summary judgment must offer
sufficient admissible evidence to make a prima facie showing that
the party is entitled to judgment as a matter of law based on the
established facts.1 To defeat summary judgment, the opposing
party must then offer admissible evidence reasonably tending to
dispute the moving partys evidence, thus establishing that a
genuine issue of material fact remains to be tried.2 We
independently review orders granting summary judgment,3
considering the entire record in the light most favorable to the
non-moving party4 to determine whether it reveals any genuine
issues of material fact.5
IV. DISCUSSION
On appeal, Olson challenges the superior courts order
granting summary judgment, insisting that the evidence raises
genuine issues of material fact concerning his retaliatory
discharge claim. Olson contends that he was fired for filing a
workers compensation claim because Teck Cominco decided that his
claim lacked merit. To support this contention, Olson points to
Teck Comincos admitted reliance on its insurers decision to
reject Olsons benefits claim in light of Dr. Burtons medical
report, which in turn found no merit to Olsons claim. Olson
insists that only the Workers Compensation Board has authority to
decide the validity of a workers claim an employer like Teck
Cominco cannot make that decision. Because Alaska law protects
workers rights to have the board rule on their claims, Olson
reasons, Teck Comincos conduct violated public policy and
amounted to a prohibited discharge in retaliation for exercising
his rights.6
Teck Cominco counters that the undisputed evidence it
presented in support of its motion for summary judgment shows
that Olson was properly fired because of unexcused absences and
that his absenteeism had nothing to do with his workers
compensation claim. Our review of the record persuades us that
Teck Comincos argument has merit. In our view, even when the
record is construed in the light most favorable to Olson,
uncontroverted evidence establishes that Olson was fired for his
continuing unexcused absences from work, not for filing a non-
meritorious claim.
Undisputed evidence shows that Olson amassed an
extraordinary number of absences from work well before he first
mentioned his workers compensation claim to Lindberg on July 13,
2002. According to Lindberg, by 2001, Mr. Olson had earned the
distinction of having the worst attendance record of any Teck
Cominco employee in the history of the Red Dog Mine. Because of
this absenteeism Teck Cominco had placed Olson on a step
discipline program by the beginning of 2002, a program that
strictly limited his unplanned absences and promised to lead
quickly to termination if Olson exceeded the limit by as few as
four days. Teck Cominco had systematically and consistently used
this program to control absenteeism at Red Dog, and had enforced
its provisions without exception.
By July 11, 2002, barely halfway through the year,
Olson had used up nearly all his available leave besides three
remaining days of the limited unplanned absences allotted under
his discipline plan. He had been absent from work for a
substantial time and gave no indication that he planned to
return. Lindberg called to make sure that Olson understood that
if he continued to miss work, he would soon expose himself to the
disciplinary steps of his plan. In response, Olson mentioned his
recent diagnosis for lead toxicity and his plans to be treated
for the condition. Yet when Lindberg checked with the two
treatment providers who had recommended and were administering
this treatment Naturopath Smith and Nurse Buchanan Lindberg
learned that neither saw any need for Olson to miss his regularly
scheduled work on account of the treatments.
On July 13, the last day of Olsons FMLA leave and the
day before he would begin to accrue additional unplanned
absences, he informed Lindberg for the first time that he
considered his lead toxicity to be work related, planned to file
a workers compensation claim, and wanted all future absences to
be counted as workers compensation leave. When cautioned that
his request would be denied unless the need for further absences
could be confirmed, Olson said that he understood.
By July 16, Olson had used up his allotment of
unplanned absences; when he missed work the next day he was
placed on the first step of the discipline plan just three
absences away from step 4: immediate termination. When Olson
reached step 4 by missing work on August 20, Teck Cominco
suspended him pending final review for termination, as his plan
required it to do.
While these events unfolded, Dr. Burton completed his
independent medical examination of Olson and reported that his
examination revealed no signs of lead toxicity requiring any
treatment. In mid-September, upon receiving the report, Teck
Comincos insurer decided to controvert Olsons compensation claim.
Teck Cominco learned of this decision and reviewed Dr. Burtons
report on September 16. The company then terminated Olson and
notified him that it had taken this action under the terms of his
step discipline plan because his independent medical examination
determined that he d[id] not have a bona fide work related
injury.
In our view, the undisputed evidence describing these
events cannot support a reasonable inference of retaliation. In
summary, the record shows:
$ More than eight months before it ultimately
fired Olson, his chronic absenteeism had led
Teck Cominco to place him on a well-defined
and strictly enforced company program of
progressive discipline that severely limited
his unplanned absences and promised
termination if Olson exceeded the plans limit
of absences by just four days.
$ Before Olson first mentioned that he wanted
to file a workers compensation claim for his
recently diagnosed condition of lead
toxicity, Olson was on the threshold of
violating his plan and was about to be
subjected to the first step of discipline.
$ Nearly a month before Teck Cominco formally
notified Olson of his termination, he had
reached the last step of progressive
discipline mandated by his plan termination
and Teck Cominco had immediately suspended
him pending final review for termination.
$ When Teck Cominco ultimately did notify Olson
of his termination after receiving Dr.
Burtons report, it explained that, based on
the independent medical examinations finding,
he was being terminated for violating the
terms of his plan.
To be sure, Teck Comincos termination letter tied the
companys action to Dr. Burtons report, which found that Olsons
claim was meritless. Yet the letter also made it clear that
Olson was being fired because Dr. Burtons report confirmed that
Olson had violated the terms of his plan.7 Olson equates this to
firing him for filing a claim that the company believed had no
merit. He reasons that allowing Teck Cominco to make such a
decision would preclude him from exercising his right to have the
workers compensation board decide whether he needed to be treated
for work-related exposure to lead.
We disagree. In considering whether the termination
letter supports Olsons theory of retaliation, we must recall
that, by his own account, Olson based his workers compensation
claim on advice he received from Naturopath Smith and Nurse
Practitioner Buchanan, who had diagnosed him with lead toxicity
and recommended a course of chelation treatments. Dr. Burtons
report categorically rejected this diagnosis and dismissed the
proposed treatments as quackery. This conclusion undeniably
raised a genuine dispute as to whether Olson suffered from the
work-related condition he alleged and whether he needed chelation
treatments for that condition.
Yet Teck Comincos decision to fire Olson for missing
work did not hinge on the resolution of this dispute. Even
though both Naturopath Smith and Nurse Buchanan believed that
Olson suffered from a work-related condition and needed chelation
treatments, neither believed that he needed to miss work for
these treatments. To the contrary, uncontroverted record evidence
shows that they both informed Lindberg that Olson could keep
working on his normal schedule while he was being treated. So
when Dr. Burton found no work-related condition requiring
treatment, his report simply confirmed what Olsons own treatment
providers had expressed on this point; in other words, despite
their differing views regarding Olsons condition and his need for
chelation treatments, none of the treatment providers believed
that he needed to miss work.
Lindberg specifically addressed this point in his
affidavit, emphasizing that Olson would not have been disciplined
if I had learned that a workers[] compensation injury warranting
an absence from work had occurred. (Emphasis added.) Lindberg
went on to give a detailed account of the efforts he made to
determine if any conceivable basis existed that might have
allowed Olson to claim a work-related justification for failing
to show up for work:
I was careful to find out whether there were
any facts that would suggest that Mr. Olsons
absence from work resulted from either a real
or an imagined work related injury. I had
obtained confirmation from Nurse Buchanan
(oral and written) and from Naturopath Smith
(written) that Mr. Olsons alleged lead
poisoning did not require him to miss any
work beyond the absences allowed him under
his Performance Management Plan. I did not
rely on Mr. Olsons representation that his
workers[] compensation claim was based only
upon his assertion of lead poisoning, but
obtained confirmation from the Claims
Examiner charged with making a determination
in Mr. Olsons case that there was no claimed
injury other than lead poisoning that might
cause him to miss work, and I obtained
further confirmation that there was no
assertion contrary to the representations
made by his nurse practitioner to the effect
that Mr. Olsons treatment did not require him
to miss work.
Olson offered no evidence below to challenge Lindbergs
account. And Olson never alleged, or even suggested, that he
actually needed to miss work in order to receive the treatment he
sought for exposure to lead. To the contrary, Olson freely
acknowledged in his deposition that he recalled Nurse Buchanan
telling him that he would not need to miss work. He also
conceded that apart from some absences caused by his back injury
(which Teck Cominco had treated as workers compensation leave),
all of his other absences were related to the severe depression
that [he] was dealing with. And when asked, Did your depression
have anything to do with Teck Cominco, Olson expressly admitted,
I dont believe it did.8
In short, the record reveals no dispute as to any
genuine issue of material fact concerning Teck Comincos reason
for firing Olson. Uncontroverted evidence establishes that Olson
was terminated for violating the terms of his disciplinary plan
because Teck Comincos review of his situation confirmed that,
regardless of the divergent opinions concerning Olsons condition
and need for treatment, no one with relevant knowledge of his
claim including Olsons own treatment providers and Olson himself
saw any reason for Olson to miss work for the treatment he
allegedly needed.
Although we have previously recognized that [c]ausation
sufficient to establish a prima facie case of unlawful
retaliation may be inferred from the proximity in time between
the protected action and the allegedly retaliatory discharge,9 we
have never suggested that this rule must be mechanically applied
in all situations. Under the unique circumstances presented
here, we conclude that neither the proximity in time between Dr.
Burtons report and Teck Comincos letter of termination nor the
letters reliance on Dr. Burtons report can support a reasonable
inference that the letter was motivated by a decision to
retaliate against Olson for filing a meritless claim. We thus
conclude that the superior court properly granted the motion for
summary judgment.10
V. CONCLUSION
For these reasons we AFFIRM the superior courts
judgment.
_______________________________
1 Harrold v. Artwohl, 132 P.3d 276, 279 (Alaska 2006)
(citing French v. Jadon, Inc., 911 P.2d 20, 23 (Alaska 1996)).
2 Id. (citing French, 911 P.2d at 23).
3 Tongass Sport Fishing Assn v. State, 866 P.2d 1314,
1317 n.7 (Alaska 1994).
4 R.E. v. State, 878 P.2d 1341, 1345 (Alaska 1994).
5 French, 911 P.2d at 24 (citing Broderick v. Kings Way
Assembly of God Church, 808 P.2d 1211, 1215 (Alaska 1991)).
6 Olson rests this retaliatory discharge theory primarily
on our recent decision in Kinzel v. Discovery Drilling, Inc., 93
P.3d 427 (Alaska 2004) (recognizing potential claim for
retaliatory discharge based on evidence suggesting that employers
reasons for termination violated public policy). He also cites
two New York workers compensation cases for the proposition that
an employer may not take adverse action against an employee based
on a unilateral determination that the employees workers
compensation claim is non-meritorious: Tomlin v. Asplundh Tree
Expert Co., 229 A.D.2d 740 (N.Y. App. Div. 1996); and De La
Concha v. Fordham Univ., 738 N.Y.S.2d 745 (N.Y. App. Div. 2002).
Because we conclude that the evidence fails to support Olsons
contention that Teck Cominco fired him for filing a non-
meritorious claim, we need not consider the validity of Olsons
retaliatory discharge theory and express no opinion on the
theory.
7 As Teck Comincos letter put it, Olsons termination was
based on the examining physician for the Workers Compensation
claim determining that you do not have a bona fide work related
injury. Therefore, the absences associated with the Workers
Compensation are deemed to be unplanned pursuant to the terms of
your Performance Management Plan. (Emphasis added.)
8 In his reply brief on appeal, Olson suggests that his
depression was work related and might have been caused by his
exposure to lead, and he cites various authorities for the
proposition that depression can be a symptom of lead poisoning.
But Olson failed to make this argument in the superior court,
presented no evidence there to support it, and belatedly raised
the issue on appeal in his reply brief. For all these reasons,
the point has not been properly preserved.
9 VECO, Inc. v. Rosebrock, 970 P.2d 906, 919 (Alaska
1999); see also Kinzel, 93 P.3d at 433.
10 Our decision on this ground makes it unnecessary to
consider the alternative grounds Teck Cominco advances for
affirming the superior courts decision.
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