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December 2014

Gordon & Rees Denver Team Secures Dismissal of Federal Employment Case

Gordon & Rees senior counsel Laurie J. Rust and associate Greg S. Hearing recently secured dismissal of a federal employment case against their client, an industrial insulation company. The former employee’s complaint alleged disability discrimination, failure to accommodate a disability, disability harassment, and retaliation in violation of the Americans with Disabilities Act (ADA), as well as outrageous conduct.

The employee, an insulation installer, suffered from arthritis and deteriorating joint disease. He was taking prescription narcotics for pain. After the employee was found asleep on scaffolding 50 feet high, he was taken off work and sent for a drug and fitness for duty test. The initial results of his drug test revealed the presence of marijuana (in addition to numerous prescription narcotics) and his employment was terminated for violating the company’s drug-free workplace policy. The final drug test revealed that there had been a false positive. Meanwhile, the fitness for duty test revealed that the employee’s medical conditions had progressed significantly and he could not perform physical labor of any type, thus providing an independent basis for termination.

Rust and Hearing filed a motion to dismiss, arguing that the employee failed to exhaust all of his claims at the EEOC and that the allegations supporting the remaining claims were deficient to state a plausible claim for relief. They also sought an award of attorneys’ fees under Colorado Revised Statutes Section 13-17-201, which provides for an award of attorneys’ fees where a court dismisses an entire personal injury action. While the statute expressly applies only to actions dismissed under Colorado Rule of Civil Procedure 12(b), the District of Colorado has held the statute applies with equal force when a federal court dismisses a pendent state tort pursuant to the Federal Rules of Civil Procedure.

Facing an award of attorneys’ fees, the defendant agreed to dismiss the complaint with prejudice.

Greg S. Hearing