Colorado Business Litigation Lawyer Blog

As a follow-up to my article “United Airlines Ramp Supervisor Awarded $3M Damages for Airline’s Retaliation to Her Discrimination Complaint,” I see that an interesting alleged discrimination case has arisen in the Puerto Rico office of the U.S. Attorney.

Juan E. Milanes, a male Assistant U.S. Attorney, claims that the office of Rosa Emilia Rodriguez-Velez, Acting U.S. Attorney for the District of Puerto Rico, was a “girl’s club” where male attorneys were discriminated against and were faced with a hostile work environment.

In his complaint for damages and other relief, now filed in the U.S. District Court in Puerto Rico, Milanes claims that when he was in the narcotics unit, supervised by a female Assistant U.S. Attorney, he was subjected to numerous acts of discrimination, and that his superior created a hostile work environment. Milanes further claims, among other things, that when he complained to the Acting U.S. Attorney, she retaliated against him by denying certain benefits to Milanes’ children, when the same benefits were given to her friends in the “girl’s club.” Milanes also claimed that his superior assigned him the oldest and weakest narcotics cases, threatened him with disciplinary action, and attempted to sabotage his trial work. He says his attempt to transfer to Kosovo was blocked by Ms. Rodriguez-Velez by the filing of a written reprimand on the day he was to leave.

Milanes was placed on administrative leave and forced to resign, an action he says constituted a constructive discharge. It should be noted that only the allegations of Milanes’ complaint are outlined here. Ms. Rodriguez-Velez’s version of the events has not yet been reported.

What is the moral here? Doesn’t the highest government attorney in a U.S. possession have to follow federal law when it comes to her employees? Is it not only businesses who sometimes fail to observe the law? Stay tuned. I will be following this case with interest.

Kudos to Michael Doyle at Suits and Sentences.

Jennifer McInerney, a former United Air Lines ramp supervisor, was awarded $3 million by a federal court jury in Colorado after finding that McInerney was retaliated against by United for making a discrimination complaint.

McInerney became pregnant in 2005. Anticipating that her pregnancy may have complications, she requested assignment to alternate positions, which requests were denied. Her son was born 11 weeks premature in November and she took all available family and medical leave, vacation leave and sick time. When her time off expired in March 2006, United refused to give her additional unpaid leave, although McInerney claimed that male ramp attendants were given unpaid time off. United ordered her to return to work in March 2006. When she didn’t return, United terminated her, claiming there was a shortage of ramp supervisors, and that when McInerney requested unpaid leave, the company couldn’t hold her job open any longer.

The jury found that although United did not discriminate against McInerney
because she was a woman when it refused her request for additional unpaid leave, but it did find that she was retaliated against for having made the discrimination complaint to the company in the first place.

Senior Federal District Judge Richard P. Matsch denied United’s post-trial motions, including a motion for reduction in the $3 million judgment amount. As to the latter motion, the judge said, “The defendant consistently refers to this case as a “garden-variety” emotional distress damages case. That characterization is a reflection of the same callous indifference to Ms. McInerney's plight as was shown by Kevin Mortimer in refusing to consider the plaintiff's repeated requests for accommodation.”

Colorado and other employers should look very carefully at their personnel decisions following an employee’s request for accommodation and discrimination complaints. Employer rules should prohibit any retaliatory action against the employee. Training of supervisors and making employees aware of recognizing possible retaliatory actions is a good starting place for preventing lawsuits similar to the McInerney case.

When a business based in Colorado enters into a contract with a business based in another state, it is common for the contract to include a “venue provision,” stating in which state’s courts any controversy arising out of the contract will be tried. In general, the venue provision will be enforced by Colorado courts in the following three circumstances:

(1)Where the provision is not contrary to an established public policy of Colorado, whether the policy arises by statute or judicial decision, such as, for example, where a Colorado statute upon which the claim is at least partially based specifically mandates where venue must lie.

(2) Where the forum selection clause is not unfair or unreasonable or the result of overreaching by one party. The clause may be deemed unreasonable where, for example, the party seeking to escape the provision can show that trial in the contractual forum will be so gravely difficult and inconvenient that he will for all practical purposes be deprived of his day in court. Mere inconvenience or additional expense is not the test of unreasonableness.

(3) Where the venue clause can contain “boilerplate” or standard language used in similar contracts, where the venue clause is in standard size font in an easily readable contract of, for example, only a couple of pages.

The fact that the contract is the result of an arm’s length transaction between parties having business experience tends to negate any claim of overreaching by the party seeking to enforce the venue provision.

The bottom line is that the inclusion of a venue provision can be construed by the courts as a reasonable effort by the parties to bring certainty to the transaction in advance.

This article is for general informational purpose only. Nothing in this article should be considered as legal advice to any reader or other person, nor shall it be deemed to establish an attorney-client relationship with any person or legal entity.

[Source: Adams Reload, Inc. v. International Profit Associates, Inc., 143 P.3d 1056, (Colo.Ct.App. 2005), cert. denied, 2006 WL 2796636 (Colo. 2006)]

I recently wrote of the S.E.C.’s abysmal failures in not detecting Bernard L. Madoff’s billion dollar Ponzi scheme. (See “Bernard Madoff: An Epilogue, Parts I and II”). H. David Kotz, the S.E.C.’s inspector general has now issued two reports in which he recommends dozens of changes in the way the agency evaluates tips, trains investigators and documents examinations of securities firms.

The first report, pertaining to the S.E.C’s inspections and examinations office, recommends 37 improvements that would effectively overhaul nearly every aspect of the division’s operations. The recommendations include the manner in which investigators follow up on tips and the creation of step-by-step procedures in identifying potential securities laws violations.

The inspector general also issued 21 recommendations to the S.E.C.’s division of enforcement, including a formal process for handling complaints and improving the working relationships within the division. One recommendation would mandate that tips and complaints be reviewed by at least two persons with experience in the subject area before taking further action.

The S.E.C. has been directed to establish formal procedures regarding the scope and planning of examinations and the selection of staff members for specific investigations. Mr. Kotz ordered the two S.E.C. divisions to submit a written plan within 45 days detailing how they would apply the recommendations.

A re-reading of my previous blogs on this subject is recommended in order to give context to the ills addressed by the inspector general.

The Colorado Bankers Association (CBA) based in Denver, has boldly begun pushing back against federal overregulation, which many banks feel is the cause of choking of lending.

Don Childears, president and CEO of the CBA, participated in a telephone conference with 15 of his peers is bankers associations in various states concerning the stifling effect of overregulation. As a result, Childears moved forward by sending out various documents to CBA members, as well as public officials in Washington, D.C.

As part of his campaign, Childears has also begun speaking about the issue to newspapers, special district associations and other organizations across the state.

Childears said that a part of the problem is that in the chaos of the last third of 2008, many non-bank lenders, which supplied about 70% of U.S. credit, were eliminated. This reduced the options that many potential borrowers had, forcing them to rely more on bank lending when their creditworthiness is impaired.

Politicians and the public are calling for increased lending. At the same time, regulators are requiring banks to raise capital ratios well above the 10% that traditionally has been considered “well-capitalized.” Banks with high concentrations of commercial real estate (CRE) loans are being asked to raise their levels the most, and to reduce their CRE exposure to 300 % of capital.

Colorado is especially hard hit by capital ratio requirements, because the economy relies heavily upon real estate. The banking industry CRE average is 320% of capital. To get the entire industry down to 300% would mean a substantial reduction statewide of at least $2.4 billion in CRE loans. According to Childears, that would result in a 6% reduction in CRE lending at a time when borrowers are trying to obtain more credit

It is unknown where the present campaign will lead.

[Source: Renee McGaw, “CBA leads effort to east bank regs,” Denver Business Journal, 10/9/09]

On September 30, 2009, I wrote about the government requirement that imposed upon contractors on certain federal projects a mandate to use the “E-Verify System” to verify a worker’s eligibility to work in the U.S. Employers were required to fire employees whose E-Verify information failed to match government SSA database information. (See “Compliance by Federal Contractors with the E-Verify System Became Mandatory Effective September 8, 2009”).

On October 9, 2009, the Department of Homeland Security (DHS) rescinded the rule. In 2007, several organizations, including the American Civil Liberties Union, National Immigration Law Center, and American Federation of Labor and Congress of Industrial Organizations had filed suit against DHS, claiming that clerical errors and inaccurate records could threaten legal U.S. workers.

At least two courts had issued injunctions to prevent the law from taking effect, while an Arizona federal court had refused to issue such an injunction. The governor of Rhode Island had issued an executive order requiring state agencies and contractors doing business with the state to use the E-Verify System. Both the Bush and Obama administrations supported the law.

[Source: Andrew Morgan, “DHS rescinds controversial 'no-match' employment rule,” Jurist, 10/9/09]

George Gombossy, a former consumer affairs columnist for the Hartford Courant, sued the newspaper and its owner, the Chicago-based Tribune Co., claiming the companies violated his free speech rights by forcing him out of his job.

Gombossy wrote columns and blogs that were critical of Courant advertisers, to which the newspaper’s owners took issue, saying the newspaper couldn’t afford to lose the business. In April, Gombossy told his editors he plann3ed to write a column about a state investigation into Sleepy’s, a mattress company that advertises with the Courant. As a result, Gombossy’s position was eliminated.

Gombossy’s attorney said this was the first time a journalist has used a state law that protects free speech in the workplace to protest a firing on grounds he was trying to protect consumers and keep his newspaper ”trustworthy.”

A spokesperson for the Courant says Gombossy had no contract for continued employment and the companies had the right to make a business decision to eliminate his position, a decision it stands by and will defend.

Gombossy has since started his own consumer affairs website www.ctwatchdog.com. He worked for the Courant for more than 40 years and was chosen to write the consumer affairs column 2007. He says he received excellent performance reviews and his column was widely promoted by the newspaper.

His suit seeks past and future economic losses, including fringe and retirement benefits, punitive damages and attorneys fees.

[Source: The Associated Press, September 29, 2009]

Denver based company, Vail Resorts, Inc. announced September 28, 2009 that it, together with the U.S. Forest Service and the National Forest Foundation, will contribute to a $4 million, three-year project to restore habitat devastated by Colorado’s worst fire in history. The 2002 Hayman fire destroyed 600 buildings, including 133 homes, and burned trees and vegetation on about 215 square miles. Erosion from burned areas caused sediment to build up around Cheesman Reservoir, creating a threat to a main source of water for Denver homes.

Most of the project’s work will focus on about 70 square miles of the most severely affected areas in four watersheds feeding the Upper South Platte River. More than 200,000 trees will be planted, plus willows, dogwood, grasses and sage to restore river areas.

According to Tom Sullivan, state director for the Nature Conservancy, without man’s help it may take 500 years before the forest restores itself.

About 65 percent of the water people use, including for farms and drinking water, comes from watersheds under the management of the Forest Service., About 75 percent of the water supply in Colorado comes through national forests. "The mountains are
the water towers of the West," according to Rick Cables, director of the Forest Service in Denver/

Denver Water, the owner of Cheesman Reservoir, has already spent $8 million planting seedlings, building sediment traps, repairing roads, installing bigger drainage pipes and doing other work to protect the watershed.

Continue reading "$4 Million Project to Help Restore Habitat Harmed by Colorado’s Hayman Fire" »