A ‘traumatizing’ dispute over Aspen rentals commission shows the paper trail matters
An Aspen luxury rental firm’s termination letter to an employee has come back to haunt its founder.
The favorable court ruling for an ex-contract employee of Aspen Luxury Vacation Rentals (ALVR) didn’t end with the March 11 order from Pitkin County Judge Erin Fernandez-Ely. Instead, it provided the springboard for more fighting between ex-broker Victoria Cooke and Tricia McIntyre, who started The Aspen Agency Inc. and ALVR in the mid-2000s, over a commission payment of $7,250.
Cooke was terminated from her job as a broker with ALVR on Oct. 21, 2020, after starting the job three weeks earlier Sept. 30. Following her termination, McIntyre accused Cooke of leaving the job with an office computer and rental leads that weren’t hers.
Yet it is Cooke who has come out triumphant in small claims court over her former superior, McIntyre, winning a judgment of $7,305 for unpaid commission and interest following a trial in February. McIntyre also was unsuccessful in her attempt to appeal the order.
McIntyre said the March 11 ruling from Judge Erin Fernandez-Ely was rooted in a lack of understanding of how commission agreements work in the vacation rental business. McIntyre also said she plans to challenge District Judge Anne Norrdin’s refusal to listen to her appeal.
Both Cooke and another former employee, Sarah Thompson, “have traumatized me and I mean that seriously,” McIntyre said. “And I was so shocked by the ruling by Judge Ely that I don’t even trust the court system.”
While Cooke has taken legal action against McIntyre and her company, Thompson has not. Thompson, however, testified in support of Cooke at the February trial and said she also had difficulties receiving commission she was due.
According to the two ex-employees, McIntyre misled them about their commission and withheld full payment from them for as long as she could. McIntyre said they weren’t entitled to their commission because they performed poorly at their jobs and didn’t complete rental commitments.
“I know where the cracks were in my business, and I’ve adjusted them,” said McIntyre. “It’s been traumatic for me, this whole thing.”
Cooke and Thompson said they are the ones who have been traumatized — whether it has been through their ongoing efforts to get fully compensated or the difficulty they’ve had paying off personal bills like rent as a result.
McIntyre also has made them out to be the catalysts for the dispute when she was the one who forced their hands to take action, they said.
“She needs to be held accountable, and I don’t want her to keep doing this to people,” Thompson said. “It’s not a good look for this town.”
Where it started
Cooke sued McIntyre individually in Pitkin County small claims court in December, seeking $7,250 for a 10% disbursement agreement, or commission, for her work brokering a $72,500 vacation rental as a contract employee for Aspen Luxury Vacation Rentals.
Cooke’s one-page complaint was straight forward and based on what she claimed she was due: “$7,250 is my commission check I have not received,” said the suit, which Cooke filed pro se and without an attorney.
McIntyre’s formal answer to the complaint, filed in February, also was terse. “A transaction was not done, we had no formal executed agreement,” was the sole line of defense in her response.
After hearing both sides make their cases in a virtual trial in February, Fernandez-Ely ruled that although Cooke did not have it in writing from McIntyre or ALVR that she would receive 10% commission for brokering the vacation rental, she “relied on the representation and procured the rental for the company.”
The judge’s order also said an Oct. 21, 2020-dated termination email from Aspen Luxury Vacation Rentals sufficed as evidence that Cooke was due commission. The email said, “Please send me a mailing address or a place where I can send your commission.”
Yet McIntyre, writing in a March 29 appeal brief to the judge’s decision, said the court did not comprehend the commission structure that called for half of the 10% commission to be paid to the rental broker at the time the rental agreement is signed, and the remaining half after the guest has checked out.
Cooke was fired before the guests in the East Cooper Avenue rental she brokered completed their Aspen stay, and McIntrye said she handled most of the details of the vacation rental.
“Tricia (ALVR’s owner) completed the rest of the rental requirements, from drafting the rental agreement, obtaining required signatures, greeting the guest, collecting funds, getting the house rental ready, addressing guest’s needs during their stay, a check-out inspection, returning the guest’s security deposit, among the many requirements needed to earn full commission on a rental. A draft of the rental agent’s job description is given to all new agents and was given to the court. Victoria understood what was required to earn commission as she admitted she read the contract,” McIntyre’s appeal brief said, noting that Cooke also refused to sign an at-will agreement to work for Aspen Luxury Vacation Rentals.
“Victoria refused to sign ALVR’s agreement, despite numerous attempts and reminders asking her to do so. Despite this, Victoria started working on leads, even though she was not officially a representative of ALVR,” the brief said.
McIntyre also argued that Fernandez-Ely based her order on incorrect information that was inadvertently attached to an email sent to the court and then submitted as evidence.
Thompson eventually settled out of court with McIntyre over commission. Thompson worked with ALVR from Aug. 4, 2020, through Nov. 2, 2020, and said the company held off paying her the remaining half of her commission for bookings she originated because it fired her before the guests checked out.
“Refusing to pay agents their entire commission is a predatory business practice if employers can simply terminate employees for no cause just before the guests arrive,” Thompson wrote in an email summarizing her experience with the company.
Meanwhile, McIntyre’s appeal gained no traction with the courts because it was filed after the 14-day deadline.
“Here, the notice of appeal was filed on March 29, 2021, which was 18 days after the entry of judgment that had occurred on March 11, 2021 — so it was 4 days late,” Norrdin wrote in an Aug. 31 dismissal of the appeal. “The filing was accompanied by a letter signed by Trisha McIntyre, a plaintiff who appears to be the corporate representative of the other plaintiff, Aspen Luxury Vacation Rentals, Inc. The letter purports to explain what it terms a 2-days late filing based on ‘unforseen emergencies with business and health.’ The letter lacks specifics about what the emergencies were. It also does not account for the fact that the appeal was actually filed 4 days late.”
The order became official Sept. 28 when Norrdin released the $250 appeal bond.
Cooke and McIntyre also have accused each other of criminal acts.
McIntyre’s allegation that Cooke left with a work computer after she was fired didn’t hold up. Cooke returned the computer two days later, saying it was taken by mistake.
Cooke, meanwhile, asked the Aspen Police Department to investigate a bank transaction after the judge’s order in March. Aspen Luxury Vacation Rentals deposited $7,305 into her account after the judgment, on March 24, but somehow took $7,305 from the Cooke’s account the next day, on March 25.
For now, Cooke said the matter is being treated civilly, and she plans to sue ALVR for treble damages over the money allegedly taken from her bank account. She claims it was taken through an act of forgery; McIntyre said it was a clerical error resulting in a charge reversal.
In the meantime, ALVR did pay her the $7,305 after taking out the money, but it wasn’t until the middle September.
“The amount of time,” Cooke said discussing the issue with police and Wells Fargo fraud department, “I think it’s fair enough to say that I need to be paid for that pain and suffering.”
McIntyre said she her reputation is being sullied by two vindictive employees who don’t understand the business.
“The way she has made me feel, that I’ve done something terribly wrong to try and screw these girls,” McIntyre said.
McIntyre said she’ll make sure brokers in the future fully understand they only get full commission after the guest has completed and paid for their stay.
“In hindsight, we didn’t get it in writing,” she said. “I’m not a litigious person. I don’t make a living out of fighting people in court. My job is to give a people a happy vacation. I didn’t get in it for this drama.”
For their part, Cooke and Thompson said it’s impossible to get paid full commission when you’re fired before the guest’s vacation you brokered ends.
“She knew what she did,” Cooke said. “The judge tells you to do one thing, and you decide to do something tricky the next day.”
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