Video Survellience Sufficient to Fire Employee on Short-term Disability

John Denham worked at Sunoco Inc. for 25 years when he took a medical leave in May 2000 due to neck, left shoulder and back ailments and began receiving short-term disability payments. During the period in which Denham was on leave, his supervisor heard comments from other employees that Denham had been engaging in physical activity that his disability would have inhibited.

The company hired a private investigator, who videotaped Denham doing activities Sunoco’s physician said he should not or could not have been doing if he suffered from back and neck ailments. The tape submitted to Sunoco showed a man working on an automobile and lifting 50-pound bags, the court said. According to the court, Denham admitted being the individual shown working on an automobile, but denied being the person shown lifting the 50-pound bags.

Denham was eventually discharged on January 10, 2001, after the Tulsa refinery personnel reviewed the matter with corporate officials in the company’s Philadelphia headquarters.

Denham filed a wrongful termination suit in Oklahoma state court, but because the federal Employee Retirement Income Security Act (ERISA) preempted state law the case was moved to the U.S. District Court for the Northern District of Oklahoma, which ruled that Sunoco’s rationale for firing Denham was both “reasonable and believable.”

The appeals court also agreed with the lower court in rejecting Denham’s argument that Sunoco’s human resources department should have investigated his disability status, not the benefits plan administrator.

According to the opinion, Sunoco supported its decision to fire Denham by having the following:

• Reports from other employees regarding Denham’s activities while collecting short-term disability;
• Videotape indisputably showing him working on his truck and doing errands with no apparent impairment in movement;
• Signed affidavit from a private investigator identifying Denham as the person in the videotape lifting fifty-pound sacks; and
• The opinion of the company doctor that a person with Denham’s impairments could not be engaging in the activity depicted in the videotape.

The opinion Denham v. Sunoco Inc., 10th Cir., No. 06-5040, 2/21/07 is  here .