February 19, 2018

Colorado Court of Appeals: State Personnel Board Lacked Authority to Review Non-Employee’s Claim

The Colorado Court of Appeals issued its opinion in Williams v. Department of Public Safety on Thursday, December 31, 2015.

Employee—Reinstatement—Colorado Anti-Discrimination Act—Sexual Orientation—Arbitrary and Capricious—Front Pay—Attorney Fees.

Plaintiff spent 12 years as a Colorado State Patrol (CSP) employee, climbing the ranks from trooper to captain. In 2010, he resigned from CSP to pursue his dream of becoming a helicopter pilot. He applied for reinstatement three months later. The new chief required plaintiff to complete a full background check and take a polygraph examination. During the pre-polygraph interview, plaintiff was asked questions eliciting information about his sexual orientation. Reinstatement was later denied on the basis that plaintiff failed the polygraph test. Plaintiff filed a complaint with the State Personnel Board (Board) alleging that CSP had acted arbitrarily or capriciously and that it had discriminated against him on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act (CADA). An administrative law judge (ALJ) found in favor of plaintiff.

On appeal, CSP contended that the Board did not have authority to review plaintiff’s claim that CSP acted arbitrarily or capriciously in declining to reinstate him. The statutory scheme unambiguously grants the State Personnel Director authority over claims of an arbitrary or capricious action. The Board has authority to review a “discriminatory or unfair employment practice[]” of nonemployee appointment decisions as defined in CADA, but it does not have authority to consider a nonemployee’s claim of arbitrary or capricious action. Accordingly, the claim was remanded to the Board for referral to the Director, who could consider whether the claim was tolled by lack of notice.

CSP contended that the record lacked sufficient evidence to support the ALJ’s conclusion that CSP discriminated against plaintiff based on his sexual orientation. However, the record supports the findings that CSP intentionally discriminated against plaintiff based on his sexual orientation. Supporting evidence included plaintiff’s exemplary record while previously employed, the treatment of plaintiff by CSP after it was discovered that he was gay, and the disparate treatment between plaintiff and other re-hires in similar situations.

CSP also argued, and the Court of Appeals agreed, that the former CRS § 24-34-405 did not authorize the Board to award front pay. Because the Board exceeded its jurisdiction in awarding this remedy, this portion of the Board’s order was reversed. On remand, the Board could consider ordering reinstatement.

Finally, CSP contended that the Board’s attorney fees award to plaintiff was unsupported by substantial evidence. However, the record supports the ALJ’s conclusions that CSP’s decision-making process lacked any reasonable basis and was made in bad faith. Therefore, the attorney fees award was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

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