The Westin Denver International Airport looms over the white tented roof of the airport's main terminal.

The Westin Denver International Airport looms over the white tented roof of the airport's main terminal.

A federal judge did not create an unfair trial by disciplining and calling attention to the contemptuous behavior of SkyWest Airlines’ representatives during the trial, the appeals court based in Denver ruled, upholding a multimillion-dollar employment discrimination verdict against the company.

Former ramp agent John Hayes prevailed in a 2017 jury trial against SkyWest, his former employer that operated the United Express brand at Denver International Airport. He had sued the regional airline for violating the Americans with Disabilities Act when it failed to accommodate his worsening kidney disease and instead effectively ended his employment.

SkyWest appealed, claiming the presiding U.S. District Court judge, Robert E. Blackburn, had raged against the company in the presence of the jury in a manner that was unnecessarily hostile.

“It’s not an exaggeration to say that the trial in this case went off the rails,” Marcy Glenn, an attorney for SkyWest, told the U.S. Court of Appeals for the 10th Circuit at oral arguments. “SkyWest was entitled to a fair trial. Instead, it received the judge’s scorn and repeated attacks in the presence of the jury, and there is no way that the verdict was unaffected.”

But a three-judge panel of the 10th Circuit believed Blackburn was well within his authority in responding to SkyWest’s own misconduct during the trial.

“The district court advised the jury in a factual, straight forward, brief, and not unnecessarily detailed or disparaging manner,” wrote Judge Joel M. Carson III in the Sept. 9 opinion. “The transcript betrays Defendant’s attempts to characterize the event differently.”

A bizarre series of incidents occurred at the weeklong trial. First, Blackburn noticed a paralegal for SkyWest gesturing to Jaime Sorensen, the company’s human resources representative and a key witness, while Sorensen was on the witness stand. Blackburn halted the trial and sent the jury out of the room to discuss with the parties. The paralegal admitted she gestured to indicate that Sorensen should not answer a question.

After the jury returned, Blackburn informed them that “the paralegal for the defendant SkyWest ... attempted to communicate improperly, inappropriately with Ms. Sorensen” and that he had “banished” the paralegal. He asked whether any juror had seen the gesture, and none indicated they had.

Later that day, Sorensen rode in an elevator with one of the jurors after her testimony. The juror initiated a conversation with her, telling Sorensen she had “done great,” that she had “a big job,’ and that she “need[ed] to go home and get a glass of wine.” Sorensen responded she was "just doing my best to keep it clear and concise."

Sorensen immediately told SkyWest’s attorneys about the interaction, who in turn alerted Blackburn. The following morning, the attorneys said that Sorensen’s stress after testifying and her “rural Utah upbringing” caused her to engage with the elder juror who initiated the conversation. According to SkyWest, the judge was “enraged.”

“The courtroom was en fuego in that moment,” Glenn told the 10th Circuit panel.

After Sorensen and the juror confirmed the interaction, Blackburn said he would subject them both to contempt proceedings, dismissed the juror and ordered Sorensen to leave the courthouse. When the jury returned, the judge described that “the corporate representative for the defendant” and the juror had disregarded his repeated instructions not to have contact. As such, principles of fairness and integrity “were violated by the improper, inappropriate conduct” of Sorensen and the juror.

Paul Maxon, who represented Hayes, defended Blackburn’s response by telling the 10th Circuit that “jurors had to be informed of the seriousness of the misconduct and the possible consequences if they did not heed the court’s instructions.”

“I’m wondering if the manner — although I don’t think he intended to do so — the manner in which he addressed the issues with the paralegal and then with the corporate representative didn’t unfairly give the impression to the jury that SkyWest was trying to illegally or unethically influence the outcome of the proceeding,” Carson wondered during oral arguments. “Shouldn’t he have been on guard for that when he was making those admonitions?”

The paralegal was, in fact, trying to unethically influence the proceeding, Maxon responded.

The panel ultimately found Blackburn did not abuse his authority or taint the proceedings by describing the paralegal incident to the jury, even though SkyWest had argued that terms like “banished” painted SkyWest as a villain.

“We think this argument hyperbolic and dramatic,” Carson wrote.

Similarly, the appellate judges found the elevator conversation could have affected the juror’s impression of Sorensen as a witness, and Blackburn’s reaction was justified. Moreover, SkyWest had not proven that jurors “were led to believe the worst” about SkyWest after Blackburn described the interaction to them and sent home the company's crucial witness.

The panel also laid down a benchmark for deciding when there should be a new trial based on a judge's conduct: if the behavior was intended to disparage one of the parties for the jury and prevent jurors from being impartial. Blackburn, the judges concluded, did not tailor his remarks to the jury to that effect.

Finally, the 10th Circuit upheld the lower court's award of $308,000 in front pay to Hayes, meaning the compensation he would have received were he still employed. SkyWest tried to argue that because its ground services contract at DIA ended shortly after terminating Hayes, it would have needed to lay him off anyway. But the panel agreed with Blackburn that SkyWest's discrimination affected Hayes's ability to get a job with the company that took over the DIA contract, meaning front pay was warranted.

"We hope and expect that this verdict will send a strong message to employers that discrimination and retaliation in the workplace will not be tolerated, but will be severely punished," Maxon said at the time of the verdict. The jury originally awarded $2.45 million, but Blackburn reduced the amount to comply with legal caps.

Attorneys for SkyWest did not immediately respond to a request for comment following the 10th Circuit's decision. Maxon said he was "unbelievably pleased to know that justice is finally at hand."

A separate panel of the 10th Circuit previously upheld Blackburn's related decision to find the paralegal in criminal contempt for obstructing the administration of justice. The paralegal lost her job as a result of the courtroom incident, and Blackburn declined to impose further penalties upon her.

The case is Hayes v. SkyWest Airlines, Inc.

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