SkyWest Fails to Get New Disability Bias Trial on Own Slip-Ups

A significant jury award will remain in place against ground services provider SkyWest Airlines Inc. over its decision to terminate the employment of a worker with kidney disease, despite trial disruptions caused by its own team, the Tenth Circuit ruled Thursday.

And a lower court didn’t abuse its discretion in awarding $300,000 in front pay after the trial, the appeals court said. That was an acceptable exercise of its equitable powers, the court said.

John Hayes alleged he worked for SkyWest at Denver International Airport, where SkyWest had a contract with United Airlines. Despite Hayes’ declining physical health from chronic kidney disease and his resulting decision to resign a management position, he continued working for SkyWest and retained a trainer designation.

Shortly after Hayes returned to work after taking leave including under the Family Medical Leave Act, SkyWest terminated his employment. Shortly afterwards, SkyWest lost its United contract and furloughed many employees in Denver. Hayes sued, alleging disability discrimination.

A jury awarded him more than $2.4 million, which the court reduced because statutory caps and other reasons. But the court also awarded front pay after a post-trial hearing.

SkyWest appealed, saying it was entitled to a new trial because of the lower court’s handling of two trial mishaps: one where a paralegal on the defense team gestured to a SkyWest corporate representative who was on the stand, and the other where the corporate representative conversed with a juror in the elevator at the end of the same day.

The court was within its powers to relate the incidents to the jury, and to say that the paralegal was “banished” from the courtroom and that the corporate representative and now ex-juror would face contempt proceedings, the U.S. Court of Appeals for the Tenth Circuit said.

“That a party perceives itself disadvantaged by the consequences of its own misconduct or that of its agent does not mean that the district court acted inappropriately,” it said.

The front pay award, based on testimony that Hayes’s termination prevented him from hearing about similar jobs at the company replacing SkyWest in Denver, was proper despite all the furloughs, the court said.

Judge Joel M. Carson wrote the court’s opinion, which Judges Jerome A. Holmes and Paul J. Kelly Jr. joined.

Paul Maxon, who practices in Boulder, Colo., and Lowrey Parady Lebsack LLC represented Hayes. Holland & Hart LLP and Fabian VanCott represented SkyWest.

The case is Hayes v. SkyWest Airlines, Inc., 10th Cir., No. 19-1294, 9/9/21.