Attorneys begin gathering evidence in Vail Resorts lawsuit

Attorneys for Vail Resorts employees who claim the company has systematically violated federal and state labor laws for a proposed class-action lawsuit have begun the lengthy process of gathering evidence.

The first phase of evidence production or “discovery” begins as the two sides await a decision from Magistrate Judge Gordon P. Gallagher on a few key questions that will determine how the case proceeds in the weeks and months to come.

The lawsuit was filed on Dec. 3, 2020, in U.S. District Court for the District of Colorado on behalf of Randy Dean Quint, John Linn, and Mark Molina, who are current or former employees at Beaver Creek Resort. The pending lawsuit alleges that Vail Resorts violated the federal Fair Labor Standards Act as well as state labor laws in Colorado and eight other states.

The lawsuit alleges Vail Resorts has for years failed to pay Quint, Linn and Molina and thousands of other seasonal employees, including ski and snowboard instructors, ticket scanners and lift operators, to varying degrees, for their entire shifts, for “off the clock” work the company requires or accepts, for overtime, for training, or for the use, purchase or maintenance of ski and snowboard equipment and cellphones the company requires workers to have.

“For example, when I teach a full day’s private lesson, pursuant to company policy, I am only paid for 6.5 hours even though I work an estimated 9 hours,” Linn wrote in his plaintiff declaration.

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In his declaration, Quint estimated that, between December 2017 and December 2019, he should have been paid for an additional 470.17 hours, amounting to $8,363.30 in unpaid wages.

Since December, 13 other current or former Vail Resorts employees have signed consent forms to join the lawsuit, saying that they, too, were improperly compensated for their work by the large ski resort operator.

Quint, Linn and Molina are “named plaintiffs” in the lawsuit while the other 13 joiners are “opt-in plaintiffs,” according to documents filed with the court.

Edward Dietrich, attorney for the plaintiffs, declined to comment on the status of the case Wednesday. Dietrich is representing the now 16 plaintiffs in the Vail Resorts case along with Benjamin Galdston. Both are California-based attorneys.

A representative from Vail Resorts also declined to comment on Thursday, adding “we look forward to providing an update in the weeks ahead.” Vail Resorts’ attorneys, Jonathan O. Harris, and Michelle B. Muhleisen, could not be reached for comment Thursday.

Dietrich and Galdston have been pushing for the case to be granted class action status, permitting the plaintiffs to prosecute the lawsuit on behalf of a larger group or “class” impacted by the allegations, which, in this case, are current and former employees who worked for Vail Resorts over the past three years.

Sometime in the coming months, Judge Gallagher will announce a decision as to whether he feels the plaintiffs have produced sufficient evidence to grant their case conditional certification as a class or “collective action” lawsuit under Rule 23 of the Federal Rules of Civil Procedure.

In the meantime, Dietrich and Galdston have argued that Vail Resorts should be ordered to hand over contact information for all relevant employees companywide so they can be notified of their eligibility to join the lawsuit if they have been affected.

Muhleisen and Harris said Vail Resorts does not need to release such information until the lawsuit receives conditional class action status, but Dietrich and Galdston pushed back against this, citing case law that points to the contrary.

Finally, Dietrich and Galdston have asked the judge to stop the clock on the statute of limitations for any new employees who decide to join the lawsuit so that they can be compensated for any owed wages for the full three-year period prior to the file date of Dec. 3 of last year.

Vail Resorts’ attorneys, on the other hand, have argued since February that the three Colorado-based plaintiffs – Quint, Linn and Molina – lack standing to pursue state law claims in the eight other states named in the lawsuit: California, Minnesota, Wisconsin, Washington, New York, Vermont, Michigan, and Utah.

“By their own allegations, plaintiffs never worked in those states, and have not established they were otherwise subject to the laws of those states,” the attorneys argued in a partial motion to dismiss filed in February. “As several cases from this district hold, plaintiffs have no injury under the laws of those states and lack standing to assert claims under those laws on behalf of themselves or a putative class …”

“Vail (Resorts) is wrong,” Dietrich and Galdston fired back in their response to the company’s motion, filed in April. The attorneys cited several appellate court cases, “which Vail ignores,” arguing those higher court rulings “make clear that named plaintiffs do not have to live or work in a state to have standing to assert state law claims on behalf of absent class members who live in those states.”

As the two sides await a decision on these matters, they will begin “phase 1” of “discovery,” a legal term used to describe when both parties produce and discuss the evidence they will use in trial.

In a significant win for the defense, Judge Gallagher sided with Vail Resorts when they requested a “phased” discovery process, which Dietrich and Galdston said is another attempt to stall the case.

“Indeed, Vail has sought to delay this action and has largely succeeded — this case has been pending for six months [as of May] and Vail has only produced 1,720 pages of virtually useless documents,” a motion filed by Dietrich and Galdston states.

A scheduling order filed and agreed to by both parties last month outlines what evidence will be presented in the various phases leading up to an eventual trial that, based on multiple proposed schedules, is not likely to occur until at least 2023.

“Discovery in this case will proceed in three phases,” the July scheduling order states. “The first phase of discovery will focus on the named plaintiffs and opt-in plaintiffs and the discovery necessary for conditional certification of the [Fair Labor Standards Act] collective action.”

In this first phase, Vail Resorts has agreed to deliver employment records as well as pay and time records for all the plaintiffs. The company will also hand over documents detailing its procedures around time reporting, pay, overtime, expense reimbursement and more, according to the scheduling order.

Dietrich and Galdston said this is not enough, and asked that the court compel Vail Resorts to give up all “policies, procedures, manuals, guides or similar documents for all of its resort properties across the country,” especially the “Employee Guide” and the “Ski & Snowboard School Resource & Guideline Manual” for each resort. Dietrich and Galdston also asked for copies of the paycheck stubs and timecards of each plaintiff.

In a note included in the scheduling order, Judge Gallagher ordered the two parties to confer around this difference of opinion and an “informal discovery dispute hearing” will be held if needed.

These initial documents are due by Oct. 1, along with depositions — statements from plaintiffs and Vail Resorts representatives — and “interrogatories,” which provide an opportunity for each party to ask questions of those on the other side, according to the scheduling order.

The final deadline for the conclusion of phase 1 is set for April 28, 2022, further underscoring the slow pace of the ongoing lawsuit. Judge Gallagher is expected to file a decision on whether he will conditionally certify the lawsuit as a class action suit by that time.

If Gallagher decides to grant class action status, that status will be conditional to further presentation of evidence, according to the scheduling order.

Phase 2 of evidence discovery will then focus on the claims of any new individuals who join the lawsuit as well as evidence to determine whether the requirements of a class action lawsuit are met or if that conditional certification should be revoked.

“If any conditionally certified collective action is not decertified or a Rule 23 class is certified, then the third phase would focus on the merits of the claims, and the plaintiffs’ and collective and class members’ damages,” the scheduling order states.

Email Kelli Duncan at kduncan@vaildaily.com