The CEO and owner of a Colorado law firm faces a former employee’s claim that he, as her manager, is personally liable for firing her while she was on maternity leave.
Michael W. McDivitt erred that Alessandra Morales cannot sue him as an aide and aide under the Colorado Anti-Discrimination Act, a federal judge in Denver said. The judge overruled the decision of another U.S. District Court for the District of Colorado attorney in a previous case as to whether supervisors could be held liable for aiding and abetting bias, and in this case heeded a judge’s recommendation and decisions of the federal courts of Massachusetts and Oregon.
Relevant provisions of the CADA distinguish between an employer and its employees, Judge William J. Martinez said Wednesday. It is clear, therefore, that an employer and its employees are not a single entity for benefits purposes under the CADA, and that the employees are separate individuals who can be sued, Martinez said.
Judge Christine M. Arguello came to a different conclusion Judson v Walgreens Co., which, under the “intra-corporate conspiracy doctrine,” established that officers acting within the scope of their employment are no different from their employer, Martinez said. But the decisions in Walters v President and Fellow of Harvard College and Schram v. Albertson’s Inc. are more convincing, he said.
Walters involved a similar law of Massachusetts and scratch involved a similar Oregon law, Martinez said. judsonon the other hand, was based on a decision by the Kentucky Court of Appeals affecting state aid rules that did not contain an explicit reference to employees, contrary to CADA and Massachusetts and Oregon statutes, he said.
According to Morales’ lawsuit, she worked as an attorney for the law firm McDivitt PC for more than five years and was mentored by McDivitt. She told the company in September 2019 that she was pregnant and it was
granted 12 weeks of unpaid maternity leave, but McDivitt called and fired her while she wasn’t there, Morales says.
McDivitt screamed “this conversation is over” when Morales asked him to consider her family situation and job loss, and the firm refused to notify clients of her departure and provide them with her updated contact information after she had founded her own law firm, she says. It also tried to poach its clients and intervened in a settlement in one of their cases, she says.
McDivitt and company were granted dismissal for Morales’ willful infliction of emotional distress claims. Being fired without more isn’t outrageous enough, especially when it’s done over the phone rather than in person and doesn’t involve alleged “derogatory or offensive language,” Martinez said.
The defendants’ motion was not aimed at dismissing Morales’s pregnancy, sex and disability discrimination claims and claims under the Family and Sick Leave Acts, the court said.
Ogborn Mihm LLP represents Morales. Littler Mendelson PC represents McDivitt and his company.
The case is Morales v. McDivitt Law Firm, PC, 2022 BL 410268, D. Colo., No. 1:21-cv-01262, 11/16/22.