Sherman & Howard Successes

On February 21, 2008, Ray Deeny and a member from our litigation department, Tamir Goldstein, won a case in Arizona brought under the Computer Fraud and Abuse Act. A business sued one of its former employees and his new employer because, while still in his former position, the employee had accessed certain confidential information. The previous employer claimed the employee had accessed the information after deciding to quit and go to work for a competitor. Representing the new employer and the employee, Ray and Tamir argued that improper motivation alone was insufficient to show that the employee's access had exceeded his authority. The federal trial court in Arizona agreed and, instead of granting the former employer's motion for a temporary restraining order, granted Ray's and Tamir's motion to dismiss.

Andy Volin recently won a Colorado federal court case involving claims of interference and retaliation under the Family and Medical Leave Act, and disability discrimination and retaliation under the Americans with Disabilities Act. The case related to our client's discharge of a warehouse employee after he was "no-call, no-show" for three days. Before he was fired, the employee claimed to have suffered a workplace injury and turned in a medical provider's note requesting short-term disability leave. Andy's investigation uncovered that the employee, in fact, was about to be sentenced to jail in a criminal matter; he apparently obtained the note so he would not be fired for being absent while he was incarcerated. On the ADA claims, Andy challenged whether the plaintiff was disabled, as he had performed his duties prior to his termination. The plaintiff agreed to drop the ADA claims entirely in exchange for our client's agreement not to seek an award of its fees and costs on those claims. The plaintiff insisted on continuing his FMLA claims, and the Court ruled in Andy's favor. Under the undisputed facts, the plaintiff could not show FMLA interference or retaliation because, among other things, he was not entitled to FMLA leave and had not engaged in FMLA protected activity.

An employer in a race discrimination case that had been ongoing for more than a year specially engaged Ted Olsen and Andy Volin, mid-litigation, to oppose the eight plaintiffs' effort to have their lawsuit approved as a class action. The plaintiffs asked the Colorado federal district court to approve their suit on behalf of "hundreds" of "non-white" individuals who were "denied a job, denied rights or benefits of a job, or terminated from a job" at the employer on the basis of race, color, ethnicity or retaliation, in a period of more than three years. Ted and Andy were contacted about the case only three business days before the deadline for the employer's opposition to the class certification request. Despite the time crunch, persuasive legal briefs and affidavits were filed, and within a matter of weeks, on February 28, 2008, the Court denied the class certification motion based on the filings.

The Tenth Circuit Court of Appeals, on February 11, 2008, affirmed a summary judgment in favor of our clients, an employer and two executives, in an action by a former employee. The plaintiff claimed sex and age discrimination and retaliation based on a change in her commission structure, a decision not to transfer her to a new position and her eventual discharge. She also claimed FMLA retaliation and defamation by the executives. Ray Deeny, Bill Wright and Dan Combs obtained summary judgment on several of the claims, but the case went to a jury trial on two claims of sex and age discrimination. The jury verdict was also for the employer.  Leaving the jury verdict alone, the former employee then appealed the grant of summary judgment, but the Tenth Circuit has now affirmed that portion of the case, so that Ray, Bill and Dan have achieved a complete victory for the client.