John Hayes

Despite this option, and with full knowledge that the ADA required the company to allow Mr. Hayes to work if he could, SkyWest’s HR manager wrote that she was going to call him up and “let him come to the conclusion” that he could not continue working for the company. The following Monday, she did just that, and placed him on involuntary, unpaid leave, without health insurance—two months after he had suffered complete kidney failure and began dialysis treatment. 

In its August 20, 2014 announcement to Mr. Hayes of its decision to place him on involuntary leave, SkyWest concealed from him the option of working under a different job code. Instead, the company told him that he was free to apply for other positions. Because he had 8 years of prior recruiting experience, and had done recruiting for SkyWest, he applied for an open pilot recruiter position that same day, notifying SkyWest immediately. But weeks passed and SkyWest took no steps to place him in the open pilot recruiter position or communicate with him about the status of his application. Instead, SkyWest’s Denver station manager, who knew that Mr. Hayes was a dialysis patient, emailed him that he could only return to work if he had no medical restrictions. 

On August 22, 2014, Mr. Hayes made an internal complaint about disability discrimination and retaliation. The next business day SkyWest’s human resources manager responded by calling him problematic and joking about his situation. On September 12, after SkyWest had failed for three weeks to address his complaint or take any steps to place him in the vacant pilot recruiter position, Mr. Hayes filed a charge of discrimination with the Equal Employment Opportunity Commission. 

After learning of Mr. Hayes’ EEOC charge, SkyWest selected another applicant for the pilot recruiter position—someone with no previous recruiting experience and less than one year experience with SkyWest. SkyWest then refused to place Mr. Hayes in an open safety supervisor position that he applied to and was qualified for. Instead, the company selected a non-disabled applicant who had been demoted for damaging an aircraft and disciplined for bringing a knife to the airport. SkyWest further rejected Mr. Hayes’ applications for open Shift Manager and Parts Supervisor positions, despite scoring him as 100% qualified for both. All of these events occurred after he took medical leave and complained of discrimination. 

In spite of these facts, SkyWest zealously defended against Mr. Hayes’ lawsuit in ways that first tested, and then exceeded, the boundaries of ethical and legal conduct. During the pretrial phase the Court repeatedly warned SkyWest about its questionable tactics. On June 6, 2016, it found that the company failed to disclose relevant documents, and warned of the possibility of sanctions for future discovery violations. On May 19, 2017, SkyWest was found to have made a representation in its summary judgment motion that the Court found to be “seriously misleading.” And on September 8, 2017, it rejected SkyWest’s motion to dismiss and found that the company had failed to disclose relevant authority to which it was a named party. 

Undeterred by the Court’s repeated warnings regarding potentially unethical conduct, SkyWest proceeded to trial. In so doing, it flatly rejected all settlement overtures by Mr. Hayes’ lawyers. At trial, despite having had three years to prepare, SkyWest failed to offer credible explanations for its treatment of Mr. Hayes. Regarding cancelling his insurance, which had been at issue since the original complaint, SkyWest presented no evidence at all. Regarding changing his job code to allow him to continue to work, SkyWest’s corporate representative Jamie Sorensen implied that it could not be done, in direct contradiction of the testimony of SkyWest’s human resources representative and written contemporaneous documents. And, fatefully, regarding the selection of a less experienced applicant for the pilot recruiter position, Ms. Sorensen fabricated the excuse that it was because the person selected was entitled to special consideration because he was being laid off from his job at Denver International Airport—an explanation that was directly contrary to the truth. Mr. Hayes was the applicant from Denver entitled to special consideration because of the layoff; his competitor worked at a different airport. 

During the cross-examination of Ms. Sorensen, SkyWest’s conduct turned criminal. Maxon placed a copy of the resume for the person selected for the pilot recruiter position on the overhead projector, for the entire courtroom to see. As he circled the portion showing that the selected applicant had not previously worked in Denver, but before he questioned Ms. Sorensen about it, SkyWest’s paralegal Ann Rutledge silently mouthed to Ms. Sorensen, “Don’t answer!” Judge Blackburn, who was sitting about ten feet from Ms. Rutledge, saw this. After calling a bench conference, he halted the trial, dismissed the jury, and brought Ms. Rutledge to the podium. He then swore her in and questioned her about what he had seen. After she admitted to instructing Ms. Sorensen not to answer, he found Ms. Rutledge in criminal contempt and dismissed her from the case. The jury was then brought back into the courtroom.  

Unfortunately, this was not the end of SkyWest’s misdeeds. While leaving the courthouse at the end of the day, Ms. Sorensen entered an elevator with a juror. The juror began talking with her, and the two then discussed the quality of Ms. Sorensen’s testimony and the presentation of Plaintiff’s case. When the judge learned of this the following morning, he again dismissed the jury and this time brought Ms. Sorensen to the podium. After mirandizing her in open court, he asked if she had this discussion with the juror, and she admitted that she had. Both she and the juror were then dismissed from the case, and criminal contempt proceedings initiated against them. For the second time in as many days, the jury was brought back into the room, and told of SkyWest’s criminal conduct. Its defense table, which once seated five, was down to three. 

SkyWest committed its second act of criminal contempt on Friday September 22, which was scheduled to be the final day of trial. Because of the delays caused by the company’s conduct, the jury did not begin deliberation until 4:00 that afternoon. At 5:00, the foreperson reported that they had not reached a verdict, and the judge sent the jurors home. Mr. Hayes, who had since moved to Tennessee, would have to change his travel plans, including making lodging and dialysis arrangements for the weekend, and wait until Monday for a verdict. 

Mr. Hayes and his attorneys returned to the courthouse at 8:00am on Monday. After attending Ms. Rutledge’s contempt hearing, he and his counsel went across the street to wait. Because the verdict form was six pages long, and included four different categories of damages requiring extensive calculations, Maxon believed that if they got a call quickly it likely meant a defense verdict. At 9:00 the Court called. After the jury entered the room and handed the verdict form to the judge, he spent five minutes reading all six pages silently to himself. Then the read it out loud. The jury found that SkyWest had discriminated against Mr. Hayes in violation of the ADA, failed to accommodate in violation of the ADA, retaliated in violation of the ADA, retaliated in violation of the FMLA, and was liable for punitive damages. In finding against SkyWest on every claim submitted, the jury concluded that SkyWest had acted against Mr. Hayes “with malice or reckless indifference” and awarded him $2.45 million, including $2 million in punitive damages. Unfortunately, because of the damage caps, the punitive damages award was reduced to $300,000.