Two Sherman & Howard attorneys successfully defended a Colorado business against discrimination and retaliation claims. They say the case offers lessons for other employers and raises new questions about whether company executives can face claims of aiding and abetting their own employer under Colorado anti-discrimination law.
Sherman & Howard member Heather Fox Vickles and associate Amy Knapp represented American Truck Business Services, a Colorado-based company that provides tax and accounting services for the trucking industry.
A former ATBS employee sued the company in Jefferson County District Court, alleging ATBS failed to provide accommodations for his post-traumatic stress disorder in violation of the Colorado Anti-Discrimination Act. The man also alleged the company retaliated against him for filing a disability discrimination complaint with the Colorado Civil Rights Division and that two of the company’s executives, Tom Hagglund and Dan Prime, aided and abetted the discrimination and retaliation.
The third claim presented some novel legal issues. When the Sherman & Howard attorneys first saw the aiding and abetting claim, it didn’t look like there was a basis to dismiss because “there’s a substantial lack of case law on those types of claims in Colorado state courts under CADA,” Knapp said.
But they found a similar case, Judson v. Walgreens, from the U.S. District Court for the District of Colorado. In that decision, issued earlier this year, the federal court found that under CADA, a corporate representative can’t aid and abet their own employer if they’re acting within the course and scope of their employment. “There wasn’t really a distinct legal actor because a corporation can only act through the actions of its agents,” Knapp said. “The argument is [that] corporate representatives can’t aid and abet their own company because that, essentially, is tantamount to saying the company aided and abetted itself.”
The state court was convinced by the argument and dismissed the claims against the executives. The lack of case law is likely because few employees bother to bring such claims. “It wouldn’t get an employee plaintiff anything extra if they try to bring an aiding and abetting claim against company executives,” Vickles said. “It’s the same damages, the same legal theory.”
The court also dismissed the former employee’s failure to accommodate claim on summary judgment, finding he failed to show he was otherwise qualified for his job and that ATBS had met the plaintiff’s reasonable requests for accommodation.
The retaliation claim was the only one that proceeded to trial in October. The plaintiff alleged that after he filed a complaint with the CCRD, Hagglund, who was his supervisor, took away his overtime, yelled at him and accused him of various mistakes. According to his complaint, the former employee later took 30 days of unpaid leave from his job at ATBS and never returned, having been advised by his doctor and therapist that the “workplace environment was hazardous to his health.”
The jury handed down a verdict in the company’s favor on Oct. 15. One thing that strengthened the company’s defense, according to Vickles, was that the former employee was a “serial litigator” who had filed lawsuits and CCRD charges against other employers, some of which contained allegations that were “strikingly similar” to the ones against their client. ATBS also presented evidence that the plaintiff lied on his job application and resumé. “We were just able to demonstrate his total lack of credibility,” Vickles said.
Testimony by Prime and Hagglund also helped the company’s case, according to Vickles. “The company had really bent over backwards for this guy when it learned he had a disability,” she said, adding that ATBS had “pretty much granted every accommodation he had asked for. They were giving them every opportunity to succeed in the position.”
Vickles said there are two major lessons employers can learn from the case. The first is the importance of seeking legal advice early on. “Long before the charge and the litigation, [ATBS] had already been talking to their lawyers about managing the situation properly,” she said. This early intervention “really protected them down the road,” Vickles added, “because they had all the pieces in place that they needed to successfully defend the case all the way through trial.”
The second lesson for employers is to verify the employment history of job candidates. “If ATBS had just taken that small step of verifying his prior employers and the dates of employment, that would have raised a red flag, because he had falsified those dates trying to cover up his background,” Vickles said. “So it just highlights the importance of doing a little due diligence before you hire somebody.”