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SkiCo CEO: Former instructor is a public figure by Chad Abraham, Aspen Daily News Staff Writer Wednesday, March 21, 2012
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Kaplan files answer in libel suit from Mulcahy, who is also suing Crowns
The CEO of the Aspen Skiing Co. says a libel lawsuit brought against him by a former ski instructor should be dismissed because the plaintiff is a public figure, according to a court filing.
The attorney for Mike Kaplan filed a response Monday to Lee Mulcahy’s lawsuit in Pitkin County District Court. It says the plaintiff “is a public figure by virtue of his involvement in matters of public interest or general concern.”
Mulcahy on Friday also sued Paula and James Crown, SkiCo’s owners, in Pitkin County Court seeking to overturn his company-imposed ban that prevents him from using ski lifts or otherwise stepping foot on SkiCo properties like restaurants. The lawsuit against the Crowns also seeks $1.
The war of words between Mulcahy and SkiCo began in November 2010, when the instructor filed two complaints with the National Labor Relations Board (NLRB). He 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.
Mulcahy has been banned from the ski areas and all company-owned property since Dec. 30, 2010, when he distributed fliers to guests in the SkiCo-owned Little Nell hotel and in gondola plaza. The material criticized the ski school’s pay policies. He was also suspended with pay starting that day and told that the company would press trespassing charges if he violated the ban. He was fired Jan. 31, 2011.
But Kaplan’s answer says, as the CEO wrote in a letter to the editor in February 2011, that Mulcahy was fired for performance reasons unrelated to his NLRB complaints or his union-organizing actions. The NLRB upheld the dismissal.
The CEO acknowledges the claim in Mulcahy’s lawsuit that SkiCo changed certain workplace policies as a result of the settlement between the company and the NLRB.
Mulcahy’s suit, filed Feb. 1, says that numerous “federally mandated changes in the SkiCo’s employee handbook concerning protected freedom of speech and the ski school’s actual structure were required.” One change was “the conclusion of SkiCo’s ‘Team Leader’ program that was established to improve communications between SkiCo ski instructors and management ...,” according to Kaplan’s filing.
Mulcahy, who had been a SkiCo instructor since 1996, claims that Kaplan’s statements to company employees and in letters to the editor about him were false and defamatory.
Kaplan wrote that Mulcahy’s performance infractions included taking a class of young girls out of bounds and using abusive language toward them, and charging a private lesson to a customer’s credit card without authorization.
The lawsuit says Kaplan acted with “reckless or callous indifference” to Mulcahy’s protected rights, and it seeks $15,001 because the plaintiff sustained “a great financial loss” in 2011.
Kaplan, who has enlisted Denver attorneys Edward Ramey and Lila Bateman, denies those allegations. Bateman wrote in the answer that Kaplan’s letters contained both the truth and statements of opinion, and that he “has a qualified privilege to make the alleged statements.”
Neither attorney returned messages asking them to elaborate on the “matters of public interest or general concern” that allegedly make Mulcahy a public figure. The burden of proof in defamation lawsuits is higher for public figures.
Mulcahy also did not return a message seeking comment.
In the lawsuit against the Crowns, Mulcahy says his ban is illegal.
“Plaintiff and others similarly situated will be chilled and burdened in the exercise of his First Amendment rights because of the continued threat of arrest on public property,” wrote Mulcahy, who is representing himself. “The ban is unconstitutionally overbroad [sic] in that it renders subject to incarceration and other treatment persons who are critical of the Crowns or the SkiCo.”
SkiCo spokesman Jeff Hanle declined comment Tuesday.
The SkiCo leases much of the land it uses from the U.S. Forest Service. Because the four ski mountains are under the company’s purview, it contends it can ban Mulcahy from even hiking on national forest land. Mulcahy has since said he received a letter from the Forest Service saying he is allowed to hike and ski down if he chooses. Chairlifts, however, remain verboten.
Mulcahy also sued Heidi Zuckerman Jacobson, director and curator of the Aspen Art Museum, with similar claims in county court. He is banned from museum property after he was allegedly caught on a security camera hanging “for sale” signs at the institution’s new site in downtown Aspen.
Mulcahy denied that accusation but said he taped a “citation from the citizens of Aspen” and a piece of art inspired by Occupy Wall Street “onto the museum’s sign and surveillance camera pole.” Zuckerman Jacobson has yet to file an answer to the lawsuit, which seeks $250.