Tea Partyer takes on limousine liberals in Aspen & Elites threaten jail

Michelle Obama: Do As I Say, Not as I Do Liberal, Chapter 3798


As we discussed on last Sunday’s edition of the Teri O’Brien Show, we discussed Michelle Obama’s latest glamorous getaway, this time to a luxury ski resort owned by Jim and Paula Crown, wealthy democratic donors, who just happen to come from Chicago. But, wait–there’s more:

The Crowns own the Aspen Skiing Company, known locally as The Skico, which has been involved in a labor dispute with Lee Mulcahy, a former ski instructor who was fired he says for criticizing the disparity between what the Skico pays its instructors ($69 a day) and the cost of a day long lesson ($625). Mulcahy, who took his complaint to the National Labor Relations Board, pointed out that he was merely asking for a living wage, something he argues the Crowns already support through their philanthropy to organizations that back a living wage. (Shia Kapos, “Aspen’s have-nots hurl challenge at Crowns,” Crain’s Chicago Business, January 24, 2011)

In May 2010, Mulcahy wrote a letter to a local newspaper questioning Skico’s corporate mentality of “the customer is always right, no matter when they are wrong” and gave the example of a private shuttle that wouldn’t offer a ride to skiers at public bus stops on a snow day because he was concerned his well-to-do customers would complain. Though Mulcahy stressed he was lucky to work for Skico repeatedly, he found himself fired. According to the Chicago Tribune, Mulcahy maintains it was in retaliation for voicing his opinion and for sending emails to fellow instructors about living wages and discussing unionization. He filed with the National Labor Relations Board. (Alejandra Cancino, “Speaking out in Aspen snowballs into lawsuit,” Chicago Tribune, December 12, 2010). Alas, Mulcahy ultimately lost his NRLB fight last June, but not before the NRLB required Skico to end its policy barring communication between instructors on personal email accounts about wages, benefits, work conditions and unions. (Scott Condon, “Aspen Skiing Co., Mulcahy end bitter feud–for now, The Aspen Times, July 1, 2011.)

Wait-does her husband’s NLRB, complete with its new “recess” appointments, appointed when the Senate was not in recess, know about this issue?

I’m sure if confronted about another act of blatant hypocrisy, Michelle would give the questioner one of her patented scowls, and take it as just another example of the racism inflicted on her by this racist country.

(H/T Big Government)

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Mulcahy faces trespassing charge for serving lawsuit
Former ski instructor taped court summons on door of Skico's headquarters

Copyright 2012 The Aspen Times. All rights reserved. This material ... March, 31 2012 7:26 am
Mulcahy faces trespassing charge for serving lawsuit
Former ski instructor taped court summons on door of Skico's headquarters

ASPEN — The battle between a former ski instructor and Aspen Skiing Co. took another odd twist Thursday when Lee Mulcahy received a summons for third-degree trespass after he taped a court notice onto a door at the firm's headquarters.
Pitkin County Deputy Sheriff Levi Borst determined the trespass charge, a petty offense, was warranted because Mulcahy had been warned previously to stay off Skico property, according to an incident report. Mulcahy was banned from all Skico property when he was fired as a ski instructor in February 2011.
Mulcahy said he was simply trying to deliver a revised court summons for a lawsuit he filed against Jim and Paula Crown, members of the family that owns Skico. The lawsuit was initially filed in Pitkin County District Court. It was refiled in Pitkin County Court. Once it was refiled, Mulcahy was obligated to inform the Crowns.
“Being white trash, I was trying to save the money by taping the revision to the door” at Skico headquarters at 117 Aspen Airport Business Center, Mulcahy said.
In his lawsuit against the Crowns, Mulcahy is seeking to overturn the ban and damages of $1.
Earlier, Mulcahy tried to serve the revised summons by handing it to a Skico employee and asking her to take it inside, according to the incident report. The employee wouldn't help. So Mulcahy decided to tape the summons to an outside door at Skico offices. He said he had a 6-foot pole made from PVC pipe with him in case he needed an extension to avoid trespassing. However, he said he thought he was on a public sidewalk to a side door at Skico headquarters, so he walked up and taped the notice to the door.
Skico Senior Vice President and attorney Dave Bellack contacted the sheriff's department about Mulcahy's actions later Thursday. He reported the incident as a harassment because of Mulcahy's efforts to convince a Skico employee to take in the revised summons.
Mulcahy said he was contacted by a deputy at his home after he returned home Thursday night from bible study at an Aspen church. He requested that the deputy go to Skico headquarters with him to see if he actually trespassed on Skico property. Mulcahy said he will investigate whether he was on a public easement as part of his defense. The door opens to a parking lot that doesn't belong to Skico, he said.
Skico spokesman Jeff Hanle said Skico had no comment about the incident.
Mulcahy claimed he was the victim in the incident. It shows how Skico “bullies the little guy,” he said.
“Should I expect this kind of disrespectful treatment from billionaires Jim and Paula Crown for pointing out they're limousine liberals .... for questioning their ban?” he said.
Mulcahy has a running battle against Skico over the wages paid to beginning ski instructors and other lower tier employees. Mulcahy wants Skico to pay what he calls a living wage.
Mulcahy was fired by Skico in February 2011. The company said it was for multiple infractions of company policy. Mulcahy claimed it was because he criticized company practices and talked to other instructors about forming a union.
He tried to get his job back by filing a complaint with the National Labor Relations Board (NLRB) but was not reinstated. The NLRB did require Skico to restructure its ski school structure so that management didn't participate on employee grievance boards. Skico was also required to specifically inform employees it was within their rights to explore formation of a union.
Mulcahy said his fight with his former employer is over freedom of speech. In addition to his lawsuit against the Crowns, he filed a libel lawsuit earlier this year against Skico President and CEO Mike Kaplan for comments Kaplan made at the time of Mulcahy's firing.
Mulcahy is supposed to appear in county court May 1 for the trespass case. He said he will try to get the hearing postponed because he will be in Africa installing water wells as part of a interfaith community volunteer project.
scondon@aspentimes.com

Former ski instructor Mulcahy prefers a trial

by Chad Abraham, Aspen Daily News Staff Writer

An Aspen man cited for trespassing after he allegedly went onto Aspen Skiing Co. property to serve papers for his lawsuit against the company pleaded not guilty to the petty offense Tuesday.
Lee Mulcahy, 48, rejected a plea agreement from Deputy District Attorney Richard Nedlin, the prosecutor said at the hearing in Pitkin County Court.
Now Mulcahy, who is suing SkiCo and its owners, Jim and Paula Crown, along with company CEO Mike Kaplan, could face jail time if convicted at his October jury trial. The now-withdrawn plea deal involved a deferred sentence, meaning Mulcahy could have avoided a jail sentence if he accepted it and stayed out of further trouble, Nedlin said.
Mulcahy, a former SkiCo instructor, was fired in 2011 after he questioned salaries for beginning ski teachers and distributed flyers on gondola plaza and underneath doors in the Little Nell criticizing the company.
Mulcahy says his firing was retaliation, while SkiCo maintains it was based on poor work performance.
The Aspen resident, who told Judge Erin Fernandez-Ely that he works as an artist, sued Kaplan on Feb. 1 in Pitkin County District Court for libel. Mulcahy says Kaplan’s statements about his job performance were untrue.
He filed suit against the Aspen Art Museum the same day, seeking an injunction to overturn the institution’s ban of him from its property. Mulcahy sued the Crowns in county court March 16, then in district court April 16, with a similar claim (he’s likewise banned from all SkiCo-owned property).
Ely dismissed the county court lawsuit against the Crowns, which also sought $1, earlier this month.
One of the reasons that case was dismissed stemmed from Mulcahy’s failure to properly serve the Crowns, an effort that led to the trespassing citation.
On March 29, SkiCo attorney Dave Bellack called police to file a criminal complaint against Mulcahy, who allegedly walked on to SkiCo headquarters property at the Aspen Airport Business Center in an attempt to serve the Crowns with the lawsuit summons.
“Mulcahy said that he realized there was an incorrect date on a summons he had previously delivered to SkiCo, and [he] knew he needed to re-serve it with a correct date,” wrote Levi Borst, a Pitkin County Sheriff’s deputy.
According to Borst’s report, Mulcahy said he used a six-foot-long plastic pole to tape the summons to a SkiCo door while standing on what he presumed was a public sidewalk.
“Mulcahy pointed out the door (with the blue tape still attached) — which I estimated to be about 17 feet from the curb,” Borst wrote.
Asked about Bellack’s claim that Mulcahy had first walked onto SkiCo property to try, in vain, to get an employee to take the summons, he “did not answer,” Borst wrote.
The court summons taped to the door included a cover letter to the Crowns that opened, “To the fabulous fascists ...,” the deputy’s report says.
In court Tuesday, Ely urged Mulcahy to apply for the public defender. But he said he likely doesn’t qualify given his income.
Ely asked if he was sure he didn’t want to accept the plea offer and plead guilty: “A deferred sentence and judgment is usually a pretty good offer,” she said.
“No thank you,” Mulcahy said, adding that he was cited for trespassing because he was serving court papers. “I’m not a lawyer.”
“I know, there’s a reason people go to law school,” Ely said, encouraging him to get an attorney or consult with one. “Jury trials are complicated.”
Nedlin said after the hearing that jail time is a possibility for Mulcahy if he’s convicted.
“Anytime you go to trial, you’re seeking some jail sentence,” Nedlin said. “He was offered a perfectly good plea deal.”

chad@aspendailynews.com

ASPEN — A former ski instructor pleaded not guilty Tuesday to trespassing on Aspen Skiing Co.'s headquarters, setting the stage for a trial later this year.
Deputy District Attorney Richard Nedlin had offered a deferred judgment and no jail time to Lee Mulcahy, 48, of Aspen, for his third-degree trespass citation. Mulcahy rejected it.
Skico fired Mulcahy and banned him from company property in February 2011. [This is wrong--should be Dec.30th when I passed out flyers for an instructor's union on company property---including National Forest].   The company said it was for multiple infractions of company policy. Mulcahy claimed it was because he criticized company practices and talked to other instructors about forming a union.
Yet clashes continue. In February, Pitkin County Deputy Levi Borst cited Mulcahy for taping a court notice at Skico's offices at the Aspen Business Center.
Earlier this year, Mulcahy told The Aspen Times he was simply trying to deliver a revised court summons for a lawsuit he filed against Jim and Paula Crown, members of the family that owns Skico. The lawsuit was initially filed in Pitkin County District Court. It was refiled in Pitkin County Court. Once it was refiled, Mulcahy was obligated to inform the Crowns.
Mulcahy has claimed he tried to serve the summons by handing it to a Skico employee and asking her to take it inside, according to the incident report. The employee wouldn't help. So Mulcahy decided to tape the summons to an outside door at Skico offices. He also has contended he thought he was on a public sidewalk to a side door at Skico headquarters, so he walked up and taped the notice to the door.
That was enough to prompt Skico senior vice president and attorney Dave Bellack to contact the Sheriff's Office, reporting the incident as harassment because of Mulcahy's efforts to convince a Skico employee to take in the revised summons.
Now Mulcahy is set to go to jury trial Oct. 4 and 5 for the trespass ticket. Pitkin County Judge Erin Fernandez-Ely suggested that Mulcahy take the plea and be done with the case.
“A deferred judgment is usually a pretty good offer,” Pitkin County Judge Erin Fernandez-Ely told Mulcahy at a court briefing.
“No, thank you,” Mulcahy replied.
Mulcahy's plans to retain a public defender were dampened when he told the judge he earns more than $987 a month as an artist, an amount that exceeds the threshold to qualify for taxpayer-funded counsel.
The judge encouraged Mulcahy to “get a lawyer or at least consult with one.”
“The basis for the alleged trespass was that I was serving court papers,” Mulcahy told Fernandez-Ely. “But I'm not a lawyer.”
On Tuesday afternoon, Mulcahy amplified his defense with a new court filing.
“It was not my intent by any stretch to trespass on Skico property,” he wrote in a motion to dismiss the trespass charge. “In fact, I'm still not clear as to where the public sidewalk ended. Moreover, I cannot stress how little I desire to interact with these sycophants. I was there for the sole purpose to serve court papers. ... By allowing the trespassing charge to proceed, the court has doomed all process servers, none of whom I could really hire as I'm David fighting Goliath, to the same bullying tactics chilling all little people's constitutional rights.”
In his lawsuit against the Crowns, Mulcahy is seeking to overturn the ban and damages of $1.
Mulcahy said his fight with his former employer is over freedom of speech. In addition to his lawsuit against the Crowns, he filed a libel lawsuit earlier this year against Skico President and CEO Mike Kaplan for comments Kaplan made at the time of Mulcahy's firing.
The lawsuits are pending.
rcarroll@aspentimes.com
Let's be clear.  The Sheriff tried to serve James & Paula Crown @ their $1000/night hotel where the Crown Royals "camp" at when the Obamas' stay at the Crown's "Petit Trianon" 4 blocks from mine.   Then they tried to serve Dave Bellack, the SVP of Skico, the billionaire Crown's "Audi-driving hatchet man" in the Roaring Fork Valley but he refused service.       LOL:  The Sheriff told Bellack that he'd go serve the Crowns at their house; whereby, the Skico SVP told 'em he couldn't because it "is gated."   Feudal Middle Earth or Versailles?  These limousine liberals keep us ROFL-ing 24x7 here in Aspen over our Independence Day. 

The media tells us that #ows and the tea party are not the same thing?  Both are little people fighting the crony capitalism of the elites [google Bill Moyers].  The tea party is right:  the government has gotten too big & the occupiers speak to the system being rigged and corruption on Wall Street.  Little people fighting back:  it happens every 50 years.

People say I'm crazy.  OK.  Even my friends said it's crazy to take on the limousine liberals who own our local bully, the 800 pound gorilla.   LOL:  I have a backbone.   I'm an artist who believes in liberty whose Texas roots stretch back to the founding of the Republic and Baylor University.  

God has blessed both my Pop and me.  We are Eagle Scouts, went to SMU & saw the world.  My dad, the personification of the American dream, grew up on a farm without electricity and running water in Seguin, Texas, was an engineer in Los Alamos, helped design the Apollo space suit, worked on the Space Shuttle and believes the American dream is under attack by the limousine liberals.  I agree.  He believes in loving your neighbors:  Bud Mulcahy led 7 of us volunteers to Kenya to bring clean water to a village.  Circle of life. 

Front page, Aspen Daily News, August 9, 2012

Wikipedia pages for town institutions are fair game for critics

by Carolyn Sackariason, Aspen Daily News Staff Writer

Look up Aspen Skiing Co. on Wikipedia and one will find the sordid details of the company’s years-long battle with a former ski instructor who was fired after criticizing it for its pay policies. You’ll also learn about the firing of a singer who sang an unfavorable song about rich people in a crowded bar during aprés ski.

That type of information accounts for nearly half of the entry describing the SkiCo, and was posted by Lee Mulcahy, who is involved in libel and termination lawsuits with the company’s owners Jim and Paula Crown and its CEO, Mike Kaplan. Mulcahy also is banned from SkiCo properties and is facing trespassing charges after he allegedly stepped onto company property to serve court papers for his lawsuit against the Crowns.

But the worldwide web is apparently fair game; the SkiCo might not be able to ban Mulcahy from editing its Wikipedia page but it has removed his posts numerous times.

“He’s been doing it for a while,” said SkiCo spokesman Jeff Hanle. “We have taken it down and it goes back up.”

Mulcahy has taken credit for the material added to the SkiCo entry, just as he has for edits he’s made to the Wikipedia page of the Aspen Art Museum, whose properties he also is banned from. A local judge last month dismissed his lawsuit against the nonprofit and its chief executive. He sued on the basis that his First Amendment rights were violated after he was banned from museum property when he posted signs that were critical of the institution.

AAM spokesman Jeff Murcko said while the nonprofit is not certain who was behind uncomplimentary entries made to the Wikipedia page, museum personnel were first made aware of the “screeds” in February. Earlier this year, an AAM staff member went to the page to update the profile and noticed “weird” attachments, Murcko said.

“We were [like], what the?” said Murcko when the entry was first discovered.

Since then, the AAM regularly monitors the Wikipedia page. That’s much to the chagrin of Mulcahy, who said he finally gave up making edits and attaching newspaper articles chronicling his battle with the museum.

“[They] kept erasing [the posts],” he wrote in an email. “It went back and forth several times and I gave up since they have a staff of 20-plus people.”

As for the SkiCo, Hanle said it’s “not our top priority” to monitor the Wikipedia page and silence Mulcahy in that venue. “We have more important things to do. … We have a business to run and a community to support.”

Company officials, however, do not believe Mulcahy and his war against SkiCo deserve the ink it gets.

“It’s a desperate act by a desperate person,” Hanle said, adding Wikipedia is not a source that’s dependable. “Wikipedia doesn’t have the credibility. ... It’s an open forum, you can’t believe what you read.”

Matthew Roth, spokesperson for the Wikipedia Foundation, the San Francisco-based nonprofit that operates Wikipedia, said the creation of pages is an organic collaboration, and curated by the community with thousands of editors around the world.

Anyone with an interest and editing capability can become an administrator to a specific page, and make edits and entries on Wikipedia. If there is questionable information posted on a page, or entries are not properly cited through credible links, it will be noted at the top, as it is on the SkiCo entry: “This article may be confusing or unclear to readers.”

After looking at the entry for SkiCo, Roth said the content is problematic because the information doesn’t have proper citations, meaning it isn’t backed up with credible sources and websites. Having properly cited articles is the basis of how Wikipedia works, he noted.

“It makes a bunch of claims with no citations,” Roth said of the SkiCo entry. “This is a case where this article needs attention.” He added that he planned to leave a note on the business page on the back end of Wikipedia alerting an administrator that it needs an update. As of Wednesday, the entry still contained Mulcahy’s edits.

Wikipedia has a conflict of interest policy that discourages companies or individuals from editing information about themselves to prevent the pages from becoming nothing more than public relations mechanisms. But Roth acknowledged that it happens all the time.

“There is a big discussion in the editing world about conflict of interest edits,” he said. “It’s supposed to be a neutral view.”

Mulcahy said he made entries to AAM and SkiCo Wikipedia profiles to make the public aware of what he believes are injustices created by both organizations, which he characterized as bullies because they’ve banned him from their properties after his speaking out against them. He said the Internet is today’s method of spreading the word, much like the country’s revolutionary forefathers did by passing out pamphlets in town squares that criticized the establishment.

He called the entries “situationist art” and accurate.

“Bullying has occurred since David vs. Goliath,” he wrote in an email. “I try to use humor in my fight with big money so it’s not so personal but it’s about community and big money’s attempt to bully a community member by running me out of town.”


sack@aspendailynews.com

http://www.aspendailynews.com/section/home/154278

Warning:  Rant to follow, but it’s funny.  Update from Aspen on the bannings from Lee Mulcahy:

 

Dear Big $,

 

 Texas was once part of Colorado.  My friend Meredith likes to say:  “I don’t go lookin’ 4 a fight; but if you try to bully me, let’s go.” 

Big $ says I’m crazy white trash.  I’m an artist.  With the current state of affairs, we need a little crazy. Our government just passed 2  bills you’ve probably never heard of taking away our Constitutional rights.  Witness the union of the left and the right against tyranny:   Google ACLU Obama NDAA or Tea Party HR347.  The occupiers and the tea partyers are the same thing: little people fighting the elites.

My Father came from a farm without running water or electricity; he is the epitome of the American Dream.   My Mom traces her heritage back to the Republic of Texas where her Great Grandfather founded Baylor University, my alma mater.  Bud & Sandy Mulcahy took 5 of us from Aspen to Kenya to bring clean water to the village of a man they met on their 50th wedding anniversary. www.africawaterwells.org   My pastor says life is a struggle;  I agree.  My ancestors, the white trash of their day, rebelled against Rome; the Celts believed that God dwelled not in my Rome but with the people.  They left Ireland to take this message of freedom to the world.  “The most dangerous philosopher in the West,” according to The New Republic, Slavoj Zizek, quotes the same passage by Paul in Ephesians in his newest book introduction as my pastor did today:  “For our struggle is not against flesh and blood, but against leaders, against authorities, against the world rulers….”  He said if you don’t agree, pick up a recent copy of Time or Newsweek to see evil:  man’s inhumanity to man.  

As President Correa of Ecuador told the Brits and the USA,  “Remember David defeated Goliath in the end.”  In their arrogance, bullies forget to be fair.   Aspen’s big $ will lose on the bannings, regardless. 

The Aspen Daily News reported:  “Mulcahy said he made entries to AAM and SkiCo Wikipedia profiles to make the public aware of what he believes are injustices created by both organizations, which he characterized as bullies because they’ve banned him from their properties after his speaking out against them. He said the Internet is today’s method of spreading the word, much like the country’s revolutionary forefathers did by passing out pamphlets in town squares that criticized the establishment.  
He called the entries “situationist art” and accurate.

“Bullying has occurred since David vs. Goliath,” he wrote in an email. “I try to use humor in my fight with big money so it’s not so personal but it’s about community and big money’s attempt to bully a community member by running me out of town.”

In an email I received Friday with the subject:  CEASE ALL COMMUNICATIONS,  the attorney from Denver wrote:

 

Dr. Mulcahy:

 

I am in receipt of the e-mail you sent earlier today to our client, Heidi Zuckerman Jacobson, CEO and Director of the Aspen Art Museum, a copy of which is set forth below.

 

You are hereby requested to cease all communications, written, electronic or otherwise, with Ms. Zuckerman Jacobson.  If you fail to do so, we will pursue a formal restraining order or injunction to prohibit the same.

 

Very truly yours,

 

Kent C. Veio, Esq.

 

 

From: "Lee Mulcahy, PhD" <skiaspen50@hotmail.com>

Date: August 24, 2012 1:11:40 AM EDT

To: Heidi Zuckerman Jacobson <hzj@aspenartmuseum.org>

Subject: coffee

Heidi,  We're a community and we should be able to agree 2 disagree without bannings.  In addition, I will win on the Crown banning.  Let me know if u want 2 have coffee to discuss the art museum's ban.  thanks lee

 

 

Kent Christopher (K.C.) Veio

Kline Alvarado Veio, P.C.

1775 Sherman Street

Suite #1790

Denver, Colorado 80203

 

 

 

 

 

I love my community; but, it’s a company so I have to toot my own horn.   I honor my parents:  they sent me to Baylor, SMU, the Sorbonne and the Universidad de Salamanca; I exhibited at Berlin’s KW Institute for Contemporary Art in 2012 and in the 798 District in Beijing in 2010;  I’m an Eagle Scout; I serve potatoes at St. Mary’s for St. Patty’s; I serve on the Snowmass Arts Advisory Council as a community volunteer.   The CEOs of the museum and the Skico and I are members of the same congregation.  I offered an art roundtable and skiing challenge to both; they declined.  You won’t have coffee so I have to sue you?   These limousine liberals in Aspen preach tolerance yet have none. 

 

My friend, Ray Cheney’s letter in October 2011:

A funny thing happened to me on the way to the RFO at the Aspen Art Museum.    I recently drove over from Vail to assist a friend of mine, a local artist, who is constructing his home.   After an exhausting day of manual labor, I found myself helping to unload two pieces of what he termed “guerilla art” in the park surrounding the art museum.   We unloaded the first piece in the grassy park, leaning it against an Aspen tree, and went to retrieve the second.  In the few minutes it took to return with, two name-tag wearing museum officials had absconded with the first piece.

After placing the second piece against a different tree without event, we were able to locate the first one behind the Art Museum and returned with it to the park where we were immediately accosted by the same two Aspen Art Museum Officials.  Given their overbearing attitude and demeanor, I can only assume that they were respectively the Museum Director and Curator.  

The taller of the two, I’ll refer to as Cartman, (“You must respect my Authoritay!!!”) insisted that we remove the art from the park.    At that point, wanting nothing more than to go inside & grab a beer with my friend, a member, I suggested we just leave the piece leaning against a tree on the far side of the park.  To which the shorter of the two responded, “Then we’ll just remove it from there.”  

Desiring no further drama, we started back to the truck; however, due to the nature of the art, we were stopped numerous times by RFO attendees who engaged us, took pictures, and otherwise, slowed our progress.   Before we could make it off the grass and into the parking lot, Cartman reappeared and announced that “no hard feelings - I’ve called the police” explaining that we were “co-opting my event.”  

Within seconds, the police arrived; we continued on our way past them and loaded the paintings on the truck.   We sat stunned.  Realizing that freedom of expression no longer has meaning in of all places an art event in Aspen, Colorado. –Ray Cheney

 

My letter to the editor, November, 2011

Taking Heidi Zuckerman Jacobson’s counsel to heart,  “If you see something, say something,” and to be fair to the talented architect of this colossal community black eye, many of us admire Shigeru Ban’s humanitarian efforts, as well as the art of Mika Tajima.   Nevertheless, there was nothing humane about the ramming of  the controversial new Aspen Art Museum down the throat of our community.   And throwing out the kid’s show deeming it “refrigerator art?”  Seriously?

As far as Heidi’s characterization of the recent acts of civil disobedience at the future site as “criminal”, let me offer another description:  hilarious.  Perhaps the entire Museum should review situationist art theory, the Frankfurt School of artists, CoBrA, Theodore Adorno, and the International Movement for an Imaginist Bauhaus.  Aspen’s old guard can help fill you in.  

Whichever local artists are responsible for these “cowardly acts,”   you guys are making many of us ROFL.   The Art Museum Director suggests we call the police on you.  Instead, I say:  Bring it.  More fun---after all, we must be true to our history. 

-Lee Mulcahy

One month later, I was banned from the museum in December 2011 after the Art Museum called the police again about a painting entitled, “Meet the Art Police,” that was public art in a public place, leaning against my WT pick-up truck.      

Oh the chuckles these limousine liberals give us that preach tolerance, yet have none.

-lee mulcahy

The controversial painting "Meet the [Aspen] Art Police" that the artist was banned from the Aspen Art Museum under threat of arrest visits Berlin & is exhibited at the famous Brandenburg Gate in Pariser Platz near the Berlin Wall in Berlin, Germany  04.2012

Attachments:

http://www.aspendailynews.com/section/home/154991

Trial continued for local man in fight against SkiCo and trespassing ticket

by Chad Abraham, Aspen Daily News Staff Writer

After two previous efforts at getting his trespassing trial continued failed, the third time was a charm on Wednesday for a former ski instructor embroiled in a long legal fight with the Aspen Skiing Co.
 
Lee Mulcahy, 48, of Aspen, persuaded Judge Erin Fernandez-Ely of Pitkin County Court that issues in his two lawsuits against SkiCo officials may affect his misdemeanor case.
 
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). SkiCo officials have maintained that his dismissal was unrelated to the NLRB complaints and cited the work performance of Mulcahy, who at one time was part of an elite team of instructors.
 
Mulcahy sued SkiCo and its CEO, Mike Kaplan, in February for libel, and sued company owners Paula and James Crown in March.
 
The latter suit contends that his termination from the company and its subsequent banning of him from SkiCo-owned property and U.S. Forest Service land the company leases for the ski areas was retaliatory and unconstitutional.
 
Mulcahy was cited for trespassing in late March for allegedly going onto SkiCo’s property at the Aspen Business Center to serve the Crowns with the lawsuit summons.
 
He said in court on Wednesday that some of the exhibits Aspen prosecutor Richard Nedlin plans to use at trial — namely, the letter from SkiCo vice president Jim Laing that spelled out the ban — are exhibits that Mulcahy is using in his lawsuits.
 
In essence, were Mulcahy to prevail in the lawsuit against the Crowns and have the ban overturned, it would make the trespassing ticket moot.
 
“I’m an American, I pay taxes,” he said in court regarding the Forest Service ban. “I object to that.”
 
He also said he believes he is protected under the federal whistle-blowing law.
 
That was enough for Fernandez-Ely to continue the misdemeanor jury trial, which had been set for today and Friday.
 
Previous continuance motions that Mulcahy filed because he was out of the country, and then was trying to finish building his Burlingame residence before winter, had been denied. Mulcahy, who is representing himself, waived his right to a speedy trial.
 
Fernandez-Ely set a status conference for Dec. 11 in an effort to let the issues related to exhibits be sorted out on the civil side before the criminal matter is addressed.
 
Fernandez-Ely noted that finding six jurors for the trespassing trial may be difficult given the media coverage of Mulcahy and because so many people work for the SkiCo, which automatically disqualifies them from the jury pool.


chad@aspendailynews.com

 

Petre said Mulcahy had achieved due diligence in trying to serve the notice of litigation. He also found it was legitimate to serve Jim and Paula Crown as representatives of the family that owns Skico. “On the record before it, it appears that one or both of them own all, or a substantial interest in, ASC,” the order said. “As a result, the Chief Executive Officer of ASC, Mike Kaplan, is an appropriate person to receive personal service on behalf of the Crowns.”

The judge gave Mulcahy until Dec. 5 to try to serve the Crowns by sending them his legal complaint by regular mail to their last-known residential address, to their last-known business address, to any current residential address provided by the Skico attorney and by personal service on Kaplan.

Mulcahy didn’t return a telephone message from The Aspen Times on Tuesday for comment on whether he achieved those methods of service.

Earlier in the process, Mulcahy served Kaplan with the lawsuit by having his father, Bud Mulcahy, hand the document to Kaplan at the end of a Pitkin County commissioners meeting. Kaplan attended the Skico’s annual fall briefing of the county commissioners on issues of interest. Bud Mulcahy sat through the presentation, then approached Kaplan after it was finished and handed him the lawsuit. Kaplan was served as CEO of Skico.

Petre gave the Crowns 35 days from the filing of a certificate of service to respond to Mulcahy’s lawsuit.

Skico attorney Edward Ramey argued against the substituted service. His motion said Mulcahy didn’t demonstrate that he made a bona fide effort to serve the Crowns.

Ramey also argued that Skico was the only entity that should be involved in the case because any potential remedial action would have to be taken by the company, not the Crowns.

“James and Paula Crown have simply been alleged to be ‘owners’ — in fact incorrect — or (with regard to James Crown) a managing director of Ski Co,” Skico’s attorney wrote. ---Aspen Times, 

 http://www.aspentimes.com/news/9293008-113/mulcahy-skico-crowns-law...

Bud and Sandy Mulcahy, my parents:  

Front page, Aspen TImes:

Basalt couple’s trip transforms African village



Expand PhotoAspen Water Wells courtesy photo A fresh water well, storage tank and school were built in a Kenyan village thanks to the efforts of a part-time Basalt couple. The villagers used donkeys to haul in untreated water from a stream prior to the drilling of the well in 2012.

Aspen Water Wells courtesy photo A fresh water well, storage tank and school were built in a Kenyan village thanks to the efforts of a part-time Basalt couple. The villagers used donkeys to haul in untreated water from a stream prior to the drilling of the well in 2012.

Expand PhotoAfrica Water Wells courtesy photo Bud Mulcahy, left, of Basalt and Arlington, Texas, helps children from a village in Kenya strip feed corn off the cob for livestock in May. Mulcahy started a nonprofit that drilled a well in the village after he learned of its plight.

Africa Water Wells courtesy photo Bud Mulcahy, left, of Basalt and Arlington, Texas, helps children from a village in Kenya strip feed corn off the cob for livestock in May. Mulcahy started a nonprofit that drilled a well in the village after he learned of its plight.


A chance encounter between part-time Basalt residents and a waiter in a Serengeti safari camp in Kenya changed the lives of hundreds of families over the past two years.

Bud and Sandy Mulcahy, who split time between Arlington, Texas, and the Fryingpan Valley, took their first trip to Africa in 2010, at the insistence of their son, Lee.

“It was the trip of a lifetime,” Bud Mulcahy said. He and Sandy celebrated their 50th anniversary while touring South Africa, Tanzania and Kenya.

While in Kenya, they were among very few guests staying at a particular camp, so they were able to spend time visiting with the staff. They struck a friendship with Yegon Richard, a college-educated man who had to travel 100 miles to the camp from his village to find suitable employment to support his family. He worked as a waiter for a month at a time before returning to visit his family for a few days.

They learned from Richard that his village, Kapkesembe, had no clear water source. The settlement of mostly subsistence farmers transported water daily via donkeys from a stream a few miles away.

The Mulcahys visited the village, well off the tourist path, with Richard and were taken aback by the tough life there. The unprotected water created health hazards. Daily tasks that are taken for granted in the U.S., such as bathing and cooking, were complicated by the lack of clean water. In addition, the village had no electricity.

“On the plane back from Nairobi to London, Bud said, ‘We’re going back to build a well,’” Sandy said. After being married to him for 50 years, Sandy knew her tenacious husband would find a way to accomplish his goal.

That was in 2010. Creating a nonprofit organization to carry out the task was the first and simplest step. Africa Water Wells was created but fundraising was slow. Meanwhile, Bud, 78, a retired engineer who worked at the Los Alamos nuclear laboratory and in the aerospace industry, made connections that helped advance the well project. They hired a hydrologist, who determined where a productive well should be located in Kapkesembe. They bypassed Kenyan red tape to hire a contractor to drill the well and install a hand pump for $16,000.

The problem was getting donors back in the U.S. interested in the project.

“There wasn’t any money coming in at all,” Bud said. “We were prepared to take it out of our savings.”

The tide changed shortly before they flew to Kenya in 2012. Friends from the Roaring Fork Valley and Arlington contributed. The Mulcahys, who participate in a bible study fellowship, credit a higher power for the donations.

“When God is pleased with what you’re going to do, he moves it,” Sandy said.

On the day the drilling began, the Mulcahys watched in awe as the large drilling trucks rambled down a two-track dirt path leading to the village, spurring a huge celebration among the 6,000 or so residents living in and around Kapkesembe. “There were 200 kids running behind the drilling trucks and cheering,” Bud said. Some key families donated parts of their small plots in the middle of cornfields so the village could have a communal well.

The drilling was completed within four days, transforming the lives of the villagers. It is hard to describe, Bud said, but the outside aid drilling the well triggered efforts within the community to improve their situation. The villagers erected a crude metal building with toilets and a kitchen to house a primary school through seventh grade. Some of the wealthier families pooled resources to hire a headmaster and 10 teachers. By early 2013, the school had 150 students enrolled, according to the Mulcahys.

“We were there in May, and by January they had put the school together,” Bud said. “It was like nothing would get going without an outside influence.”

Africa Water Wells wasn’t finished with its project. It raised the funds to install a 2,500-gallon water storage tank and a solar-powered pump at the well site in 2013. Additional funding paid for installation of electric power to the classrooms, a computer and printer and some basic hand shop tools.

The Mulcahys said they were greeted warmly when they returned to the village this year.

“We’re superstars, probably,” Bud said.

The well provides clean water for about 1,500 families. The village is located at an elevation of about 6,000 feet and receives good seasonal rain — usually enough to water crops. “It’s a kind of a garden of Eden,” Bud said. Now it also has a year-round fresh water supply.

The villagers named the school “Clean Water Bud Academy” in the Mulcahys’ honor.

The couple also have organized volunteer teams that provide mobile health care, addiction recovery to help battle the high rate of alcoholism, pastoral training among a large Christian community within the village, and a clothing repair and sewing workshop to help develop skills. Lee Mulcahy, Nan Wendling and Shawn Cox, all of Aspen, have traveled to Kapkesembe as part of the projects.

Africa Water Wells has spent about $60,000 in Kapkesembe. All of the funds raised go directly into the organization’s projects. There are no salaries and travel teams pay for their own airfare, food and lodging, Bud said.

“It remains Africa Water Wells’ goal to be the source of funds and stateside people skills to provide enough resources to lift Kapkesembe out of its incredible predicament,” the organization’s literature says.

Projects will include a multi-year effort to provide a more permanent school and expand it to add grades eight through 12. The goal eventually is to make it a boarding school.

Africa Water Wells’ effort at Kapkesembe has earned it an endorsement from WildiZe, an Aspen-based nonprofit working to improve conditions for humans and wildlife in Africa.

To learn more about Africa Water Wells and to make a contribution go to www.africawaterwells.org.

scondon@aspentimes.com


http://www.aspentimes.com/news/9507463-113/bud-village-africa-kapke... 

 Photo:  The school supported by the communities of Dallas, Fort Worth, Arlington, Basalt and Aspen in Kapkasembee, Rift Valley, Kenya.   

Update from Aspen:  On this wonderful day of Easter at church, Paula Zurcher, the founder of modern Aspen --Walter Paepcke's daughter, told me she is bringing in a fourth laptop for education to be delivered to the school pictured above.  

Thank you to Pastor Jane at Aspen Community Church and Bronze Olympic Medalist Chris Klug and his family for the other three laptops!  The used equipment will be coming over with my parents when they return to Kenya in September.  

Praise God.

 

Plaintiff(s)/Petitioner(s):Lee Mulcahy, PhD

 

v.

 

Defendant(s)/Respondent(s):Paula and James Crown, personally  as owners of the Aspen Ski Company and the Aspen Ski Company

 

 

 

 

 

 

 

 

 

 

COURT USE ONLY

Attorney or Party Without Attorney (Name and Address):

Lee Mulcahy, PhD  53 Forge Aspen CO 81611

 

Phone Number:    8173710529         E-mail:skiaspen50@hotmail.com

FAX Number:                     Atty. Reg. #:

Case Number:

 

2012CV97

 

Division           Courtroom

PLAINTIFF’S AMENDED RESPONSE TO DEFENDANT’S MOTION TO DISMISS

 

 

 

PLAINTIFF’S AMENDED RESPONSE TO DEFENDANTS MOTION TO DISMISS

Comes now, Plaintiff, Lee Mulcahy, PH.D. (“Mulcahy”) proceeding Pro Se, who respectfully submits this Amended Response to Defendant’s Motion to Dismiss.

 

COLO.R.CIV.P.121 Sec.1-15(8)

            Plaintiff certifies that he notified counsel for the Defendant, Aspen Skiing Company (“Skico”), via email dated April 13, 2012, that he would be on a charitable, religious mission, digging water wells in Kenya, Africa from mid-April to late-May, 2012.  Despite this advance notice of his unavailability, Skico’s Counsel complains of Mucahy’s failure to respond to its attempts “to confer” with him, by both telephone and email, prior to filing the present motion before this Court.  In addition, Plaintiff certifies that he sought the approval of counsel for Defendant, via telephone and email, prior to filing this Amended Response and received no timely reply.

INTRODUCTION AND FACTUAL ALLEGATIONS

            Plaintiff was a valued employee of Defendant, Aspen Skiing Company, (“Skico”) for over fifteen (15) years.  He was in fact the top rated ski instructor, out of approximately twelve hundred (1,200) instructors employed by Skico, for several of those years.  In addition, due to Plaintiff’s producing more revenue than any other Skico employee, he was invited to join and participate in all of the elite programs available by invitation only to a select few of Skico’s employees.

            On April 30, 2010, Plaintiff received his performance review for his last full season of employment and was ranked 11th on the Private Lesson Priority List.  John Kneiper, Director of Snomass Ski School, enclosed a personal message with the review stating “100% return rate, great work. Thank you.”

            On or about June 2, 2010, Plaintiff was reprimanded by Skico for submitting for publication a letter commending Skico for rehiring a musician fired for singing a song titled “Big Money” which an unnamed Skico vice-president found offensive.

            Thereafter, Plaintiff, an hourly employee, was forced to involve the Colorado Department of Labor when Skico refused to explain or otherwise redress the deletion, by Skico supervisors, of hours from his timesheet, without notice to Plaintiff, and Skico’s resulting underpayment for hours worked by Plaintiff.  Despite numerous requests, Skico refused to reveal its policy regarding the deletion of hours worked by its employees despite being ordered by the Colorado Department of Labor to pay Plaintiff for the hours Skico deleted from his timesheet.

            On or about June 30, 2010, Plaintiff sent an email to the members of one of the elite, exclusive, “invitation only” programs to which he was a member, the “Diamond Pros”, wherein membership resulted in, inter alia, the ability of a member to receive a higher rate of pay than non-member employees. This email merely inquired as to the interest, if any, of the Diamond Pro members to work toward a collective bargaining agreement whereby ongoing employee grievances with Skico could be addressed in a productive fashion. 

            On or about August 12, 2010, Skico reprimanded Plaintiff for making the inquiry of the Diamond Pros.

            On or about August 20, 2010, Plaintiff was removed as a Diamond Pro.

            In October, 2010, Plaintiff filed a grievance with National Labor Relations Board as a result of Skico’s treatment of Plaintiff.  The National Labor Relations Board subsequently found Skico guilty of on three (3) counts of violating federal labor laws, forcing Skico to significantly reform its operating structure.

            On December 30, 2010, Plaintiff distributed flyers encouraging public attendance at a meeting of People for a Living Wage, a group which encouraged Skico and other Aspen employers to pay their employees wages which reflect the high cost of living in Aspen and encouraging unionization of employees.  While distributing the flyers, Plaintiff was confronted by  Skico’s Vice-President of Human Resources, Jim Laing (“Laing”) and summoned to Skico headquarters where Plaintiff was informed that Skico had both suspended his employment and banned him from all property owned, leased or otherwise controlled by Skico.

            On January 31, 2011, Plaintiff received a telephone call from a reporter seeking comment on a letter written by the Chief Executive Officer of Skico, Mike Kaplan (“Kaplan”), and published on February 1, 2011, in both The Aspen Times and The Aspen Daily News, wherein Kaplan informed Plaintiff, and the general public, that Plaintiff was fired from Skico.

            Thereafter, Plaintiff received a letter, dated January 27, 2011, from Laing, confirming both Kaplan’s firing as well as Skico’s banning of Plaintiff from any of Skico’s facilities, properties or locations.

            On March 30, 2012, Plaintiff was charged with Third Degree Criminal Trespass, as a result of Plaintiff serving Skico with the Complaint in this action.   Plaintiff served defendant by merely walking on a sidewalk running between a parking lot clearly displaying signs reading “No Skico Parking” and Skico’s headquarters, and taping a copy of the Complaint to a side door.  All efforts to otherwise serve defendants in this action by court appointed officials were unsuccessful.

            On July 3, 2012, at the arraignment for the trespass alleged by Skico, the prosecutor stated that he is seeking to impose the maximum six (6) month jail sentence if Plaintiff is found guilty.

Skico seeks to make Plaintiff an example of what any reasonable employee could expect should it seek assistance of state and federal agencies to redress violations of labor laws by Skico and/or promote unionization of Skico employees.    It is Skico’s assertion that it can retaliate against Plaintiff , or anyone Skico feels espouses views which Skico dislikes, from any of Skico’s “facilities, properties or locations ”,  subjecting them to criminal prosecution should they unwittingly cross the invisible, unknown boundary  to various properties, operating under numerous names, including thousands of acres of land owned by the public. 

LEGAL STANDARD

            Colo.R.Civ.P. 12(b)(5) is not applicable in that Plaintiff has stated a claim where the factual allegations, as a matter of law, support the claim for relief.  Colo.R.Civ.P. 15(a) provides that a party may amend its pleading with leave of the court; and leave shall be freely given when justice so requires.

ARGUMENT

            Few, if any, private entities in modern times have established a fiefdom such as is overseen by Skico.   It is the sole operator of all four (4) ski areas in the Aspen area.  Several of those areas are comprised, in part or in whole, by thousands of acres of public lands within the White River National Forest, owned by the United States of America and managed by the United States Forest Service.  In addition, Skico is believed to own or control close to fifty percent (50%) of the commercial property within Aspen and the surrounding areas, ranging from hotels, bars, and restaurants, to athletic clubs, open air plazas, and trailer parks, with each operating under different, or no, names, with no indication of Skico’s ownership nor with any recognizable delineation of the boundaries of these properties.

Nor has any modern private entity evidenced the hubris of Skico in trying to make an example of Plaintiff, a bible-studying Eagle Scout who actively manages charitable missions to dig water wells in Africa, by publicly threatening criminal prosecution should he inadvertently cross unmarked lines running throughout both Aspen and thousands of acres of  surrounding forest land, the location of which are known only to Skico, as retaliation for Plaintiff’s turning to State and Federal Agencies to force Defendant to comply with federal and state labor laws, and/or promoting unionization of Skico employees.

            Plaintiff here seeks only the ability to continue to live a law-abiding life in the town he has called home for seventeen (17) years without fear of walking down what is believed to be a public street, sidewalk, alley, plaza or trail and being again charged with trespassing on Skico’s property.  Plaintiff is not seeking the right to enter Skico’s various, diverse and largely unknown property for any unlawful or vexatious purpose, merely for the right to freely enter upon all of the property held open to the public solely for purposes in furtherance of the operation of such property. 

Plaintiff’s Promotion of Unionization are a Protected Exercise of Free Speech Under the United States Constitution, the Colorado Constitution, and the National Labor Relations Act

            Plaintiff’s distribution of flyers promoting unionization of Skico employees was an exercise of his right to speak freely as guaranteed by the First Amendment to the United States Constitution, Article II, Section 10 of the Colorado Constitution, and the National Labor Relations Act.

The First Amendment provides that no law shall be made abridging the freedom of speech or press.  In contrast, Article II, Section 10 of the Colorado Constitution reads in relevant part as follows:

No law shall be passed impairing the freedom of speech; every person

 shall be free to speak, write or publish whatever he will on any subject…

            Colo. Const. Art. II, Section 10.  As early as 1889, the Supreme Court of Colorado has recognized the dual guarantees afforded free speech in Colorado as necessary to “… secure to the whole people a full and free discussion of public affairs”.  Cooper v. People, 13 Colo. 337, 362, 22 P. 790, 798 (1889).

            In Bock v. Westminster Mall Company, 819 P.2d 55 (Colo. 1991), the Supreme Court of Colorado further found “that our state constitution guarantees greater protections of petitioners’ rights of speech than is guaranteed by the First Amendment.” Bock, 819 P.2d at 58.  Bock arose as an appeal from the finding of the court of appeals that petitioner’s did not have the right to distribute flyers in the common area of respondent’s privately owned shopping mall.  The Supreme Court of Colorado overturned the court of appeals by first conducting an exemplary analysis of free speech guarantees, stating:

“We preface our analysis by re-affirming the high rank which free speech holds in the constellation of freedoms guaranteed by both the United States Constitution and our state constitution.  The United States Supreme Court and this court have been extraordinarily diligent in protecting the right to speak and publish freely.”

Bock, 819 P.2d at 57.  In light of the greater protections of free speech provided under our state constitution, the court in Bock analyzed the “tortuous history” of the “United States Supreme Court’s First Amendment jurisprudence on the scope of free speech in the face of private power”. Bock, 819 P.2d at 58.   It then specifically declined to follow the “twists and turns of the federal road” evidenced by cases such Lloyd Corp. v. Tanner, 407 U.S. 551 (1972) relied on by defendant’s counsel in its Motion to Dismiss. Id.  The court adopting instead “individual liberties more expansive than those provided by the Federal Constitution” as specifically allowed by the United States Supreme Court in Pruneyard Shopping Center v. Robins, 447 U.S. 74 (1980).  Bock, 819 P.2d at 59.

            After clearly establishing the precedent that our state constitution provided greater protection for freedom of speech than that provided by the First Amendment, and rejecting the findings of cases such as Lloyd, supra., the court then thoroughly evaluated the role of public and private action impacting free speech despite clearly stating “(W)hen a state constitution like ours is more protective of free speech than is the federal constitution, a finding of “state action” according to the federal doctrine is unnecessary”. Id., footnote 7.  In considering the arguments of the parties, the Bock court recognized that there exists “hybrid forms” of public involvement. Id., at 60.  “(W)here governmental entities … are shown by the facts to … approve of or encourage private interests and such private interests happen also to restrict the liberty to speak and dissent, this court may find that such private restrictions run afoul of the protective scope of Article II, Section 10.  It is possible for interests, otherwise private, to bear such a close relationship with governmental entities … that such interests are affected with a public interest.” Id., at 60.

            The court then concluded that: given the visible presence of government entities in the Mall; given that the Mall was the modern equivalent of a business district with the common areas functioning as a “latter day public forum” as well as “virtual public spaces” available to a variety of groups and visiting public; given that a prohibition of non-violent speech, “if allowed to stand, would amount to a non-neutral, content-based restriction”; and given that no there was no showing that the distribution of pamphlets would interfere with normal business operations and therefore not affect private property rights, the court reversed the lower courts and remanded the case for entry of summary judgment in favor of petitioners. Id., at 61-63.

            In the present case, Skico’s has an exclusive lease of thousands of acres of public lands within the White River National Forest.  Plaintiff has repeatedly appealed to the District Ranger, Scott Snelson, to confirm the Forest Service’s position with regards to Skico’s banning as it applies to these public lands and has received no response.  Given this lack of response, it must be concluded that the Forest Service approves of Skico’s draconian means of restricting speech and dissent, with such restrictions running afoul of free speech protections so eloquently delineated in Bock.  It also establishes such a close relationship between the Forest Service and Skico that Skico’s private interests are clearly “affected with a public interest”.

            In addition, Skico owns or controls several outdoor plazas which are indistinguishable from surrounding public spaces.  These plazas are available to the general public, with private parties expressly allowed to advertise non-Skico businesses thereon.  See, Sandwich board lady survives mini skirmish with Skico, Aspen Daily News, September 27, 2012.

            The expansive free speech protections provided by our state constitution, so thoroughly explained in Bock, clearly protected Plaintiff’s distribution of flyers as an exercise of free speech.  The fact that Plaintiff was then employed by Skico and was distributing flyers promoting unionization of his fellow Skico employees gives rise to additional protections of his actions pursuant to the National Labor Relations Act (“NLRA”). 

Section 7 of the NLRA specifically protects an employee who actively promotes unionization of his fellow employees.  Section 8(b)(7)(C) specifically allows “publicity for the purpose of truthfully advising the public (including consumers) that employer does not employ members of a labor organization.”  29 U.S.C. S 158(b)(7)(C).  The flyers contained both a call for Skico employees to unionize as well as publicity advising that Skico, did not and does not employ union members, outside of certain ski patrols, and were therefore clearly protected actions under the NLRA.

            Clearly, Plaintiff’s distribution of the flyers was free speech protected under our constitution as well as the NLRA.  However, it is the continuing persecution of Plaintiff by Skico, in the form of Skico’s banishment of Plaintiff from any of Skico’s  facilities, properties or locations, imposed immediately following and as a direct result of Plaintiff’s protected distribution of the flyers, that is the basis of the present action.

Skico’s Banning of Plaintiff is Retaliatory in Violation of the National Labor Relations Act

            Given Skico’s dominion over the Town of Aspen, a modern day equivalent of a despotic 19th and 20th century company town, where banning is a substitute for rational discourse, it is understandable that the facts here present a case of first impression.   However, the United States Supreme Court and Colorado Law have provided an appropriate and applicable framework for deciding this matter: the tort of retaliatory actions taken by an employer for legally protected actions of an employee.

            The Supreme Court of the United States, in Burlington Northern & Santa Fe Railway Co. v. White, 548 U.S. 53 (2006), concluded that  antiretaliation provisions, such as those contained in the National Labor Relations Act,  do “not confine the actions and harms it forbids to those that are related to employment or occur at the workplace.  We also conclude that the provision covers those … employer actions that would have been materially adverse to a reasonable employee or job applicant.”  Burlington Northern, 548 U.S. at 57.  The Supreme Court then stated that antiretaliation provisions, to be effective, must apply in situations where an employer’s actions are not directly related to the employees job or cause the employee harm outside the workplace

            Locally, the United States Court of Appeals, Tenth Circuit, applying Colorado law, in Jarvis v. Nobel/Sysco Food Services Company, 985 F.2d 1419 (1993), stated that retaliatory actions are considered a tort, evolving “as an exception to the historic right of employers to terminate employees at will”.  Jarvis, 985 F.2d at 1427, citing Martin-Marietta Corp. v. Lorenz, 823P.2d 110, 104-05 (Colo. 1992).  In Jarvis, the Court went on to reaffirm that with regards to retaliatory behavior under Colorado law, employers rights are not relevant, with such rights giving way to the “employee’s statutory right to be free from retaliation” and that the employers rights are deemed secondary to the motives of the employer in exercising such rights.  Jarvis, 985 F.2d at 1427.  Particularly when the employers motives “contravenes a clear mandate of public policy”. Id. at 1427.

            In the present case, Plaintiff filed charges with both the Colorado Department of Labor and the National Labor relations Board as a result of Skico’s failure to comply with applicable labor laws.  Plaintiff promoted the idea of unionization to other Skico employees and was removed from the elite “Diamond Pros”.  Then Plaintiff distributed flyers again encouraging unionization and encouraging Skico to pay wages which reflect the cost of living in Aspen and was suspended from work (and later fired),  and immediately banned from nearly fifty percent (50%) of downtown Aspen and all of the surrounding ski areas, including thousands of acres of public lands.  When Plaintiff commenced this action by walking along a sidewalk and taping a copy of the complaint to a side door of Skico’s headquarters, Skico, having refused all other efforts to serve it, acknowledged receipt via this unorthodox method of service and immediately had Plaintiff charged with criminal trespass, with Plaintiff currently facing a $500.00 and/or six (6) months in jail if convicted.

            In addition to firing Plaintiff for his attempts to unionize his fellow employees, it can not be disputed that Skico’s retaliatory banishment of Plaintiff continues to harm him in a manner not associated with his employment or in the workplace.  In a small town with approximately 6,000 permanent residents, where Kaplan feels that he is entitled to fire an employee by publishing such action via a letter to both of the local daily newspapers, and then publishing any even more defamatory letter in response to the public outcry generated by the first, Plaintiff’s banishment is known by one and all.  Skico has clearly demonstrated the materially adverse consequences that any reasonable employee or applicant would face if they should dare exercise their federally protected rights.

            Plaintiff was a highly valued, and valuable, employee of Skico until he dared to challenge Skico’s practice of deleting hours from employees timecards and began calling for unionization of Skico’s employees.   Skico has not provided any direct explanation of the banning serving as the basis for the present action.  Even if Skico was able to espouse a non-discriminatory defense of its actions, in light of the facts, there is no plausible defense of Skico’s continuing persecution of Plaintiff that is not obviously pretextual.  “Under Tenth Circuit precedent, pretext may be shown by “such weaknesses, implausibilities, inconsistencies, incoherences, or contradictions in the employer’s proferred legitimate reasons for its action that a reasonable factfinder could rationally find them unworthy of credence and hence infer that the employer did not act for the asserted non-discriminatory reasons.” Bryant v. Farmers Insurance Exchange, 432 F.3d 1114, at 1125 (10th Cir. 1999), quoting Morgan v. Hiti, Inc., 108 F.3d 1319, 1323 (10th Cir. 1997).

            Again, Skico imposed the subject ban immediately following Plaintiff’s distribution of the flyers.  It has not and cannot provide any plausible legal basis for its actions.  It is exactly such megalomaniacal retaliatory behavior which the United States Constitution, the Colorado Constitution, and the National Labor Relations Act protects against.

CONCLUSION

            For the reasons stated above, Plaintiff Lee Mulcahy, PH.D. respectfully requests that this Court deny Defendant’s Motion to Dismiss.

            In addition, Plaintiff Lee Mulcahy, PH.D. respectfully requests that this Court deny defendant’s request for an award of attorney’s fees.

 

 

Judge denies SkiCo dismissal motion in ex-instructor lawsuit

by Chad Abraham, Aspen Daily News Staff Writer

An Aspen man whose lawsuit alleges that the Aspen Skiing Co. and its owners are violating his First Amendment rights scored a victory earlier this month when a judge denied the company’s motion to dismiss the filing.

Senior Judge Thomas Ossola of Pitkin County District Court upheld Lee Mulcahy’s lawsuit against SkiCo, citing greater free speech protections afforded under the Colorado Constitution compared to the U.S. Constitution.

Mulcahy, a former ski instructor who was fired in 2011 after he distributed fliers to guests in the SkiCo-owned Little Nell hotel and in gondola plaza criticizing the ski school’s pay policies, sued the company and its owners, Paula and James Crown in February. He claims he was fired as retaliation for that move and for discussing instructor unionization.

In addition to firing Mulcahy — the SkiCo maintains he was dismissed for work-performance issues unrelated to the fliers and unionization discussion — the company banned him from all of its properties and from the four ski areas, land it leases from the U.S. Forest Service.

Mulcahy, who is representing himself and who also has an ongoing, separate libel lawsuit against SkiCo CEO Mike Kaplan, argued that the ban from public lands violates his right to free speech.

He wrote in the lawsuit that he 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.

SkiCo’s attorney, Lila Bateman of Denver, had contended that the lawsuit should be dismissed because Mulcahy’s allegations were not supported by sufficient facts.

Bateman argued that claims under the First Amendment only apply to “state actors” and that SkiCo is not engaged in state action.

“To state a violation of the First Amendment, plaintiff must either allege that SkiCo is a state actor, or that its private property is nevertheless a designated public forum,” says Bateman’s motion to dismiss.

Ossola, though, disagreed, citing a case from the early 1990s involving a Front Range shopping mall.

“While [SkiCo] relies primarily on federal case law to support its position, Article II, Section 10 of the Colorado Constitution provides greater protections for free speech than does the First Amendment,” Ossola wrote in his Oct. 3 ruling.

Ossola cited Bock v. Westminster Mall Co., in which the state supreme court held that Section 10 applied to the privately owned shopping mall.

The case involved two members of a political association known as “The Pledge of Resistance” who sought and were denied permission to distribute their pamphlets and to solicit protest signatures in the mall’s common areas.

In ruling that the Colorado Constitution protected the Resistance members’ free-speech rights, the state high court “based its holding on the fact that there was governmental involvement with the mall’s operation and the mall also functioned as a ‘downtown business district,’” Ossola wrote.

Mulcahy’s lawsuit alleges that SkiCo holds much of its ski properties as a tenant of the federal government and that it also owns nearly 50 percent of the commercial property in and around downtown Aspen.

When these allegations are construed in a light most favorable to Mulcahy — as Ossola must do by law when deciding the merits of a motion to dismiss — the judge found that, if true, they “could support a free speech claim under Article II, Section 10 to the extent that [SkiCo] may qualify as a ‘downtown business district’ under Bock,” the ruling says. “It is also possible that the level of governmental involvement with [SkiCo’s] operations could further support a free speech claim under Bock.”

Bateman did not return a message about the ruling. Asked for comment, Mulcahy wrote in an email: “The Crowns do a tremendous amount for their kingdom but the problem is greed and abuse of power. Aspen is not Versailles nor is it their feudal kingdom.”


chad@aspendailynews.com

http://www.aspendailynews.com/section/home/155184

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Political Cartoons by AF Branco

Political Cartoons by AF Branco

ALERT ALERT

CRIME!! -> Clinton Nightmare! Chief Financial Officer Of Clinton Foundation Turns Government Informant On Crime Family

Donations to the Clinton Foundation plummeted by 90% over a three-year period since Hillary Clinton lost the 2016 election to President Donald Trump.

But that may be the least of the her worries.

John Solomon from The Hill dropped another bombshell that will keep the Clintons up at night.

The former Chief Financial Officer of the Clinton Foundation has turned on the crime family and is now working as a government informant.

This could spell doom for the Clinton Crime Family.

American Thinker reported:

John Solomon of The Hill reveals the story that has been percolating for a long time but kept tightly under wraps – because that is what serious prosecutors do, especially when grand juries are poring over evidence and issuing indictments that remain sealed until the right moment comes. The trigger for the story coming out now probably is a House subcommittee hearing scheduled next week by Mark Meadows, chair of the House Freedom Caucus, while the GOP still can set the agenda of House hearings.

[A] GOP-led congressional subcommittee, led by Rep. Mark Meadows (N.C.), is planning to hold a hearing next week to review the work of John Huber, the special U.S attorney named a year ago to investigate all things Clinton.

It turns out that whistleblowers inside and outside the Clinton Foundation have amassed “6,000 pages of evidence attached to a whistleblower submission filed secretly more than a year ago with the IRS and FBI.” Among that evidence can be found:

Those reviews flagged serious concerns about legal compliance, improper commingling of personal and charity business and “quid pro quo” promises made to donors while Hillary Clinton was secretary of State.

The submission also cites an interview its investigators conducted with Andrew Kessel that quotes the foundation’s longtime chief financial officer as saying he was unable to stop former President Clinton from “commingling” personal business and charitable activities inside the foundation and that he “knows where all the bodies are buried.”

Their own investigation! That’s hard to put down as politically motivated.

Having the chief financial officer of the Clinton Foundation turn informant is a nightmare for the Clintons. The CFO has to process all the cash, and because that person usually is on the hook for any criminal violations, there is ample incentive to turn state’s evidence.

That evidence was assembled by a private firm called MDA Analytics LLC, run by accomplished ex-federal criminal investigators, who alleged the Clinton Foundation engaged in illegal activities and may be liable for millions of dollars in delinquent taxes and penalties.

In addition to the IRS, the firm’s partners have had contact with prosecutors in the main Justice Department in Washington and FBI agents in Little Rock, Ark.

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