On the same day a former Aspen Skiing Co. instructor failed to appear in court for a trespassing charge related to a lawsuit he filed against company owners, a judge also dismissed the suit.
An arrest warrant could be issued this morning for Lee Mulcahy of Aspen for his failure to appear in Pitkin County Court on Tuesday to face the misdemeanor trespassing count, Aspen prosecutor Richard Nedlin said.
It’s the latest twist in the months-long legal fight between Mulcahy and SkiCo officials, who say he was fired because of performance issues related to his instructor job.
Mulcahy contends he was fired in January 2011 because he distributed fliers to guests in the SkiCo-owned Little Nell hotel and in gondola plaza that criticized the ski school’s instructor pay policies. He also filed two complaints with the National Labor Relations Board (NLRB).
Mulcahy claimed the company had violated federal labor law in restructuring its ski school and by removing him from an elite team of instructors as retaliation for discussing unionization. SkiCo and the NLRB eventually reached a settlement agreement in which the company tweaked its policies and employee handbook. The labor board dismissed a third claim from Mulcahy that alleged wrongful termination.
SkiCo officials have maintained that his dismissal was unrelated to the NLRB complaints.
In firing Mulcahy, the SkiCo also banned him from the ski areas and all company-owned property.
Mulcahy responded by suing company CEO Mike Kaplan and the owners of the SkiCo, James and Paula Crown, in Pitkin County District Court. Those lawsuits remain pending, as does a lawsuit in county court against the Aspen Art Museum and its director for another ban handed down to Mulcahy.
He also sued the Crowns in county court, alleging that his ban from public lands that the SkiCo leases was unconstitutional. He sought $1 in damages.
“Plaintiff and others similarly situated will be chilled and burdened in the exercise of ... First Amendment rights because of the continued threat of arrest on public property,” wrote Mulcahy, who represented himself.
He served a court summons for the county suit against the Crowns by taping an envelope to a door at company headquarters at the Aspen Airport Business Center. He told The Aspen Times that he thought he was on a public sidewalk, but the company contacted police and alleged he violated the property ban. A sheriff’s deputy cited him for trespassing, leading to Tuesday’s court date.
SkiCo attorneys in April filed a motion to dismiss, contending that Mulcahy never properly served the summons for the complaint.
Under civil legal procedures, Mulcahy was required to personally serve the summons, or hire someone to serve it, directly to the Crowns, according to the motion.
“Nothing under the rules permits [the] plaintiff to serve individual or company defendants by taping a copy of a summons and complaint to a business’ exterior door in the hopes that someone might find it,” the motion says.
The motion also says county courts do not have jurisdiction over the issuance of injunctions such as that which could lift Mulcahy’s ban from SkiCo property.
Judge Erin Fernandez-Ely of Pitkin County Court agreed, dismissing the case with prejudice, meaning the case cannot be refiled on the same claim. Fernandez-Ely also awarded the Crowns attorney fees.
Attempts to reach Mulcahy for comment were unsuccessful Tuesday.