On October 30, Gordon & Rees Denver partner Laurie J. Rust and associate Christopher Jones secured the voluntary dismissal of a hotly contested wrongful termination case against an employer and its former employee.
The plaintiff, a former manager, alleged that his employment was terminated in violation of public policy after he expressed the desire to press charges following an alleged workplace assault. He filed claims of outrageous conduct, fraudulent misrepresentation, breach of contract, and wrongful termination against the employer and claims of outrageous conduct, assault, and battery against the alleged attacker. He alleged that the company, which is owned by his uncle and cousin, fosters a culture of violence by hiring ex convicts.
The employer’s video surveillance showed that the manager misrepresented the altercation and that he was the aggressor. The employer consulted with counsel, who advised that he could not remain in a management position. The manager refused a demotion and elected termination.
Gordon & Rees’ motion to dismiss the fraudulent misrepresentation and breach of contract claims was granted at the outset. Plaintiff was granted leave to amend to save the outrageous conduct and wrongful termination claims. Our team immediately documented the frivolous nature of the amendment in a series of correspondence cautioning opposing counsel that there was no factual basis for the claims and that all claims except wrongful termination were preempted by the Colorado Worker’s Compensation Act.
During the course of discovery, Gordon & Rees produced the video surveillance and strategically waived privilege with regards to the legal advice the company received in order to establish that the manager was not terminated because he expressed a desire to press charges, but because he made a false report to the police. During the plaintiff’s deposition, he reluctantly agreed that there was no factual basis to support his amendment of the complaint. Following the plaintiff’s deposition, Gordon & Rees again cautioned opposing counsel regarding the frivolous nature of the claims and warned that it would seek summary judgment and an award of its attorneys’ fees.
Faced with the very real threat of summary judgment, sanctions, and an award of attorneys’ fees, opposing counsel agreed to a walk-away and full release for both the company and its former employee.