May 22, 2018

Colorado Court of Appeals: Ample Record Evidence Supported Finding that Job Function Not Essential

The Colorado Court of Appeals issued its opinion in Department of Human Services v. State Personnel Board on Thursday, March 10, 2016.

Essential Functions of a Job—Offset for Disability Benefits.

Brown served as an admissions psychiatric liaison at the Colorado Mental Health Institute at Pueblo (CMHIP). In June 2011, Brown began to experience health problems related to a work-related injury sustained at CMHIP. Her treating physician assigned work restrictions, which included not participating in physical intervention techniques (CTI and CPR). CTI and CPR were about 10% of her work duties, but were rarely used. In January 2012 she was assigned additional work restrictions.

Her modified duty ended on February 29, 2012 and she was denied her application for short-term disability benefits. She submitted to the Department of Human Services, Colorado Mental Health Institute (DHS) a request for reasonable accommodation under the Americans with Disabilities Act (ADA), which included an exemption from CMHIP’s requirement that she be prepared to use CTI and CPR. This request was also denied. In June 2012 she was discharged.

Brown sought review of her administrative separation and the administrative law judge (ALJ) affirmed the decision, finding that it was not arbitrary, capricious, or contrary to rule or law. Brown appealed, and the State Personnel Board (Board) adopted the findings of fact but reversed the legal conclusion that DHS’s action was not arbitrary, capricious, or contrary to rule or law. The Board found that CTI and CPR were not essential functions of her position, and ordered her reinstated and awarded back pay and benefits. On remand, the ALJ awarded back pay and benefits from the date of separation to the date of the Board’s reversal, but also concluded that her Public Employees’ Retirement Association (PERA) disability retirement and unemployment benefits must be offset from back pay and benefits.

On appeal, the Board affirmed the award of back pay and benefits but reversed the offset to the award for Brown’s PERA and disability retirement benefits, finding that disability benefits under PERA are collateral and cannot be offset.

On appeal, DHS argued that the Board erred in reversing the ALJ’s legal conclusion that DHS’s employment decision was not arbitrary, capricious, or contrary to rule or law. The Court of Appeals found no error. There was no dispute that Brown was disabled under the ADA, so the only question was whether she could perform the essential functions of her job with or without a reasonable accommodation. The Court found there was no error in the Board’s determination based on the evidentiary record that CTI and CPR were not essential functions of her position.

DHS then argued that it was error for the Board to reverse the ALJ’s conclusion regarding the PERA offsets. The Court found no error.

CRS § 13-21-111.6 allows full recovery for an employee when she has received compensation from a collateral source “as a result of a contract entered into and paid for by or on behalf of such person.” In an issue of first impression, the Court found that PERA disability benefits constitute such a collateral source not required to be offset from a damage award.

The Board’s orders were affirmed.

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

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.

Colorado Court of Appeals: Refusal to Bake Cake Because of Opposition to Same-Sex Marriage Discriminatory

The Colorado Court of Appeals issued its opinion in Craig v. Masterpiece Cakeshop, Inc. on Thursday, August 13, 2015.

Public Accommodations Law—Same-Sex Marriage—Freedom of Speech—Free Exercise of Religion—Relation Back Doctrine of CRCP 15 (c)—CRS § 24-34-306(2)(b)(II).

This appeal arose from an administrative decision by the Colorado Civil Rights Commission (Commission), which upheld the decision of an administrative law judge (ALJ), who ruled in favor of Craig and Mullins (complainants) and against Masterpiece Cakeshop, Inc. (Masterpiece) and its owner, Phillips, on cross-motions for summary judgment. In July 2012, complainants visited Masterpiece and asked Phillips to design and create a cake to celebrate their same-sex wedding. Phillips declined, stating he doesn’t create wedding cakes for same-sex weddings because of his religious beliefs.

Craig and Mullins filed charges of discrimination with the Colorado Civil Rights Division (Division), alleging discrimination based on sexual orientation under the Colorado Anti-Discrimination Act (CADA). Following a finding of probable cause, complainants filed a formal complaint with the Office of Administrative Courts, alleging Masterpiece had discriminated against them in a place of public accommodation because of their sexual orientation, in violation of CRS § 24-34-601(2).

The ALJ found in favor of complainants on cross-motions for summary judgment; the Commission affirmed and issued a cease and desist order requiring that Masterpiece (1) take remedial measures to ensure compliance with CADA, and (2) file quarterly compliance reports for two years with the Division.

On appeal, Philips claimed error in denying a motion to dismiss, alleging the Commission lacked jurisdiction to adjudicate the charges against him because only Masterpiece was named in the initial charge of discrimination with the Commission. The ALJ applied the relation back doctrine of CRCP 15(c) and found that adding Philips was permissible. The Court agreed and held that the relation back doctrine applied to a CADA charging document.

On the merits, Masterpiece argued it was error for the ALJ to conclude that its refusal to create a wedding cake was due to respondents’ sexual orientation, not its opposition to same-sex marriage. The Court disagreed. Because the act of same-sex marriage is closely correlated to respondents’ sexual orientation, it was not error for the ALJ to find that the refusal to create the wedding cake was because of their sexual orientation, in violation of CADA.

The Court considered whether the Commission’s application of the law violated Masterpiece’s rights to freedom of speech and free exercise of religion. Masterpiece argued that wedding cakes convey a celebratory message about marriage and therefore it was being unconstitutionally compelled to convey a celebratory message about same-sex marriage in conflict with its religious beliefs. The Court disagreed. The order merely requires that Masterpiece not discriminate against potential customers in violation of CADA, and such conduct, even if compelled by the government, is not sufficiently expressive to warrant First Amendment protections.

Masterpiece also contended that the Commission’s order unconstitutionally infringed on its right of free exercise of religion. The Court concluded that CADA is a neutral law of general applicability and therefore offends neither the First Amendment nor article II, § 4, of the Colorado Constitution. The order was affirmed.

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

Colorado Anti-Discrimination Act Now Provides Remedies in Employment Discrimination Cases

Roseman, BarryBy Barry Roseman

In 2013, the Colorado General Assembly enacted remedies for the employment discrimination provisions of the Colorado Anti-Discrimination Act (CADA) that have been part of Title VII of the 1964 Civil Rights Act, the Age Discrimination in Employment Act (ADEA), and the Americans with Disabilities Act (ADA) for decades.

The bill, HB 13-1136, provides that Colorado employers found guilty of unlawful discrimination or retaliation, in violation of the CADA, can be held liable for compensatory damages, punitive damages and attorney fees. CADA cases also will be able to be tried to juries. The amounts that can be awarded for compensatory or punitive damages will depend on the size of the employer. Those caps are:

For employers with 1-4 employees: $10,000

For employers with 5-14 employees: $25,000

For employers with 15-100 employees: $50,000

For employers with 101-200 employees: $100,000

For employers with 201-500 employees: $200,000

For employers with more than 500 employees: $300,000

These remedies will not go into effect until 2015, and will apply only to discrimination or retaliation claims that are based on conduct in 2015 or later. Several groups will benefit the most from this bill:

  • Employees who work for smaller employers, who are not covered by Title VII, the ADEA or the ADA. Those statutes apply only to personnel decisions by companies with at least 15 employees (Title VII and the ADA) or at least 20 employees (the ADEA).
  • Employees who have claims not recognized under federal law, such as claims for discrimination because of sexual orientation or gender identity.
  • State employees in ADA and ADEA cases. The U.S. Supreme Court has held that the Tenth Amendment bars claims for monetary damages against State governments and State agencies under those statutes.
  • Employees who live and work far from the Denver area. Claims arising under federal law can be removed to federal court. Claims arising under state law will stay in state court, at least where diversity jurisdiction does not apply.

Public employees cannot recover punitive damages under CADA or under federal law. Employees of the State of Colorado who can file discrimination claims with the State Personnel Board (SPB), and private or public employees who bring claims in Colorado Civil Rights Commission (CCRC) hearings, will not be able to recover compensatory or punitive damages in CCRC hearings or compensatory damages in SPB hearings. Instead, if they prevail on liability in those hearings, those employees will have to file a civil action to try to recover those damages. The CCRC and the SPB will stay their proceedings, including appeal rights, for at least 30 days and possibly longer, to give employees an opportunity to file and prosecute those civil actions.

These amendments track provisions in federal law in several respects:

  • Employers that demonstrate that they acted in good faith to prevent discrimination cannot be held liable for punitive damages.
  • An employer cannot be held liable for punitive damages where that employer has established that it made good-faith efforts to provide a reasonable accommodation to an employee’s disability.
  • Employment discrimination that is unlawful because of the disparate impact of employment policies will not support an award for compensatory or punitive damages.

The courts also are to consider the size and assets of the employer and the egregiousness of its unlawful conduct in determining the appropriate level of damages.

In addition, the bill provides that it unlawful to discriminate against a person who is 70 years of age or older because of that person’s age. That has been part of the ADEA since the 1980s.

The delayed implementation of the bill will give smaller employers an opportunity to learn about CADA and to bring their employment practices into compliance, if they are not in compliance already. The CCRC also is required to establish a volunteer working group by September 1, 2013. That working group is to develop an education and outreach plan for employers, and to compile educational resources for employers. The CCRC shall make this information available to employers, including through its Web site.

Before this law was enacted, Colorado was one of only eight states – five of them in the South – that did not enable plaintiffs to recover compensatory damages, punitive damages or attorney fees in employment discrimination or retaliation cases. HB-1136 brought CADA, at long last, into the 21st Century.

Barry D. Roseman is a partner in the firm of McNamara, Roseman & Kazmierski LLP, and has been representing plaintiffs in employment cases since 1975. He currently serves as co-chair of the National Employment Lawyers Association’s (NELA) Judicial Nominations Committee. He served on NELA’s Executive Board between the organization’s founding in 1985 and 2007; is a former vice president of that organization; is one of the founders and is the chair of the executive board of NELA’s Colorado affiliate, the Plaintiff Employment Lawyers Association (PELA); and chairs PELA’s Legislative Committee. He also is a fan of the Colorado Rockies, in both good times and bad.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.