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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

Olson v. Teck Cominco Alaska, Inc. (09/29/2006) sp-6052, 144 P3d 459

     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,


< td>
) Supreme Court No. S- 11755
Appellant, )
) Superior Court No. 2KB-03-39 CI
v. )
) 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.

          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.
          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
          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
          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
          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
          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.
          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
          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
          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
          For   these  reasons  we  AFFIRM  the  superior  courts
     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

     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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