April 19, 2015

Crowdfunding, Medical Testing of Assault Victims, and PERA Supplemental Needs Trust Bills Signed

As the 2015 legislative session continues, Governor Hickenlooper continues to sign legislation that crosses his desk. To date, the governor has signed 136 bills this legislative session. The bills signed in the past week are summarized here.

April 10, 2015

  • HB 15-1008 – Concerning the Classification of Agricultural Land When the Land is Destroyed by a Natural Cause, by Rep. Millie Hamner and Sen. Ellen Roberts. The bill allows agricultural land destroyed by natural causes to retain its agricultural classification for the year of destruction and four more property tax years.
  • HB 15-1256 – Concerning the Reclassification of Routt County to a Category II County for the Purpose of Establishing the Salaries of County Officers, by Rep. Diane Mitsch Bush and Sen. Randy Baumgardner. The bill recategorizes Routt County as a category II county for the purpose of setting salaries for county officers.
  • HB 15-1073 – Concerning Allowing a Driver to Challenge the Validity of a Law Enforcement Officer’s Initial Contact With the Driver, by Rep. Joseph Salazar and Sen. Jessie Ulibarri. The bill allows drivers who successfully challenge an officer’s initial stop in an administrative hearing to avoid revocation.
  • HB 15-1197 – Concerning Limitations on Indemnity Obligations in Public Construction Contracts, by Rep. Jack Tate and Sen. Cheri Jahn. The bill clarifies the manner in which indemnification clauses may be used in public construction contracts.
  • HB 15-1224 – Concerning Accounting for State Moneys Received by Public Postsecondary Institutions That Do Not Participate in the College Opportunity Fund Program, by Rep. Diane Mitsch Bush and Sens. Owen Hill & Nancy Todd. The bill separates the appropriation allocation for the two local district junior colleges affected.
  • HB 15-1183 – Concerning the Admission of a Child’s Statements Describing Attempted Acts of an Unlawful Sexual Offense, by Rep. Rhonda Fields and Sen. Lucia Guzman. The bill allows admission of a child’s statements regarding attempted sexual offenses.
  • HB 15-1191 – Concerning the Addition of Dentists to the “Physician Designation Disclosure Act,” by Rep. Brittany Pettersen and Sen. Kevin Grantham. The bill specifies that the standards and requirements for health care entities that assign designations to physicians based on performance assessments also apply to dentists.

Monday, April 13, 2015

  • HB 15-1245 – Concerning the Authority of the State Board of Land Commissioners to Use a Specified Portion of the Investment and Development Fund Moneys for Asset Maintenance, by Rep. Edward Vigil and Sen. Jerry Sonnenberg. The bill allows the State Board of Land Commissioners to spend up to $1 million from the Investment and Development Fund for certain maintenance projects.
  • HB 15-1246 – Concerning the Authorization of Crowdfunding of Intrastate Securities, by Reps. Pete Lee & Dan Pabon and Sens. Mark Scheffel & Owen Hill. The bill creates the Colorado Crowdfunding Act, which allows online investments in Colorado companies through a simple regulatory regime.

Thursday, April 16, 2015

  • SB 15-005 – Concerning Medical Testing for Certain First Degree Assault Cases, by Sen. John Cooke and Rep. Mike Foote. The bill requires a defendant in a first degree assault to submit to blood testing for communicable diseases if his or her bodily fluids contact another person.
  • SB 15-015 – Concerning a Clarification of Benefits for Autism Spectrum Disorders in Health Benefit Plans Issued in this State, by Sen. John Kefalas and Rep. Dianne Primavera. The bill allows mental health benefits under health benefit plans for autism spectrum disorders, and removes caps on the number of visits.
  • SB 15-030 – Concerning Removing Culpability for Prostitution for a Victim of Human Trafficking, by Sen. Morgan Carroll and Rep. Mike Foote. The bill creates an affirmative defense of human trafficking for those charged with prostitution and establishes a procedure to petition courts to seal records.
  • SB 15-058 – Concerning Statewide Policies and Procedures for Law Enforcement Agencies that Conduct Eyewitness Identifications, by Sen. Lucia Guzman and Rep. Elena Kagan. The bill requires law enforcement agencies to develop policies and procedures regarding eyewitness identifications.
  • SB 15-097 – Concerning the Eligibility of a Supplemental Needs Trust to Receive Certain Public Employees’ Retirement Association Benefits, by Sen. Irene Aguilar and Rep. Lois Landgraf. The bill allows a PERA member to designate a supplemental needs trust as a co-beneficiary.
  • SB 15-099 – Concerning Eliminating Certain Duties for Probation Officers, by Sen. John Cooke  and Rep. Polly Lawrence. The bill eliminates  certain duties of probation officers to conform to actual practice.
  • SB 15-105 – Concerning the Continuation of the Regulation of Respiratory Therapists by the Director of the Division of Professions and Occupations in the Department of Regulatory Agencies, and, in Connection Therewith, Implementing the Recommendations of the Department in its Sunset Review of and Report on the Profession, by Sen. Beth Martinez Humenik and Rep. Diane Primavera. The bill makes changes to licensing of respiratory therapists as recommended by the sunset review committee.
  • SB 15-126 – Concerning Medical Tests for Victims of Crimes of Assault, by Sens. John Cooke & Michael Johnston and Rep. Mike Foote. The bill requires defendants in second or third degree assault cases to undergo medical testing for communicable diseases if their bodily fluids came in contact with another person.
  • SB 15-171 – Concerning the Continuation of the “Private Occupational Education Act of 1981″, and, in Connection Therewith, Implementing the Recommendations of the 2014 Sunset Review by the Department of Regulatory Agencies, by Sen. Owen Hill and Rep. Dominick Moreno. The bill extends the Private Occupational School Board and the Division of Private Occupational Schools.
  • SB 15-186 – Concerning the Exemption of Yoga Teacher Training from Regulation Under Statutes Governing Private Occupational Education and, in Connection Therewith, Reducing an Appropriation, by Sen. Laura Woods and Reps. Timothy Dore & Alec Garnett. The bill exempts yoga teacher training from the Private Occupational Education Act.
  • SB 15-187 – Concerning Authorization for the High-Performance Transportation Enterprise to Deposit Money Received as a Loan from the State Highway Fund to a Separate Account Within the Statewide Transportation Enterprise Special Revenue Fund, by Sen. Kevin Grantham and Rep. Dave Young. The bill allows money loaned from the State Highway Fund to the High Performance Transportation Enterprise to be deposited into the Statewide Transportation Enterprise Operating Fund.
  • SB 15-188 – Concerning the Use of the First Tier of Statutorily Allocated Tobacco Litigation Settlement Money, and in Connection Therewith, Making an Annual Statutory Allocation of Such Money to the Tobacco Settlement Defense Account of the Tobacco Litigation Settlement Cash Fund and Making an Offsetting Reduction in the Annual Statutory Allocation of Such Money to the Children’s Basic Health Plan Trust, Authorizing the Department of Revenue to Use Money in the Tobacco Settlement Defense Account for Settlement Enforcement Related Activities, and Making an Appropriation, by Sen. Pat Steadman and Rep. Bob Rankin. The bill allocates tobacco settlement funds from the Children’s Basic Health Plan Trust to the defense fund for tobacco litigation.
  • SB 15-189 – Concerning the Repeal of Consolidated Tobacco Settlement Program Monitoring and Reporting Requirements and, in Connection Therewith, Reducing an Appropriation, by Sen. Pat Steadman and Rep. Bob Rankin. The bill repeals the current requirement that the State Board of Health monitor programs receiving funding from the state’s tobacco settlement fund.
  • SB 15-190 – Concerning the Repeal of the Requirement that the Executive Director of the Department of Personnel Promulgate Rules to Establish State Archives’ Fees, by Sen. Kevin Grantham and Rep. Millie Hamner. The bill eliminates a statutory requirement that fees for the State Archives must be established through a formal rulemaking process.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Colorado Court of Appeals: Separate Challenge to Attorney Fee Award Not Prerequisite to Filing C.R.C.P. 60 Motion

The Colorado Court of Appeals issued its opinion in Oster v. Baack on Thursday, April 9, 2015.

Employment Agreement—Attorney Fees—First Impression—Challenge Under CRCP 60.

Doctors Oster and Baack owned and practiced medicine at Horizon Women’s Care. Oster and Horizon severed Baack’s employment following the loss of her medical license and brought a declaratory judgment action seeking a declaration that Baack’s employment had been terminated “for cause,” which meant that Baack would only be entitled to 25% of the value of her ownership interest in Horizon. The court entered judgment in favor of Oster and Horizon and ordered Baack to pay their attorney fees. This decision was reversed on appeal, and Baack thereafter filed a CRCP 60 motion to vacate the attorney fees award. The trial court denied the motion to vacate.

This case raised an issue of first impression—whether a party who has not directly appealed from an order awarding attorney fees and costs may still challenge that award under CRCP 60. The trial court had jurisdiction to consider Baack’s CRCP 60 motion, and Baack did not need to separately appeal the attorney fees award before filing her CRCP 60 motion. Because the appellate court reversed the underlying judgment, the trial court had awarded fees and costs under the prevailing party provision of the Employment Agreement, and the remaining agreements between the parties did not entitle Oster and Horizon to an attorney fees award. Accordingly, the attorney fees award in favor of Oster and Horizon was vacated and the case was remanded to the trial court to award Baack a reasonable amount of attorney fees and costs incurred on appeal.

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

Tenth Circuit: Discrimination Claims Fail Where Plaintiff Cannot Perform Essential Job Function

The Tenth Circuit Court of Appeals issued its opinion in Hawkins v. Schwan’s Home Service, Inc. on Thursday, February 19, 2015.

David Hawkins was a facility supervisor for Schwan’s Home Service (SHS), in which position he was occasionally required to drive company delivery trucks but mainly was responsible for ordering products, scheduling, and loading trucks. In 2010, Hawkins began experiencing severe health problems and was repeatedly hospitalized with heart problems. He had a mild stroke in June 2010 but returned to work shortly after. Hawkins’ supervisor, Mr. Hillaker, began assigning truck driving duties to Hawkins and communicated to several coworkers that Hawkins was “a liability.”

On June 21, 2010, Hawkins failed a routine DOT medical evaluation and did not receive the DOT certification required of all SHS supervisors. The next day, Hawkins received a letter that he was being placed on a 30-day unpaid leave, and he had 30 days to receive the certification or find a non-DOT position. On June 23, 2010, Hawkins signed a voluntary termination form but wrote on the form that he was forced to quit for medical reasons. He filed a complaint in the U.S. District Court for the Western District of Oklahoma, bringing claims under the ADAAA, the Oklahoma ADA, and asserting a Burk tort. The district court granted summary judgment to SHS and Hawkins timely appealed.

The Tenth Circuit evaluated Hawkins’ claims as disparate treatment claims, and noted Hawkins must show that at the time he was terminated: (1) he was disabled as defined by statute, (2) he was qualified to perform the essential functions of his job, with or without reasonable accommodations, and (3) he was fired because of his disability. The Tenth Circuit found Hawkins’ discrimination claims failed at step two, because he was unable to obtain the DOT certification and it was an essential job function.

Hawkins disputed the district court’s determination that driving a company truck was an “essential function” of a supervisor’s job, and asserted the district court incorrectly allocated burdens between the parties. The Tenth Circuit discussed “burdens” at length, noting that the term was tricky, but Tenth Circuit precedent required the plaintiff at all times to bear the burden of persuasion. Hawkins also argued the district court erroneously conflated the terms “qualification” and “function,” but the Tenth Circuit again disagreed, finding the district court’s opinion was well-reasoned and thoughtfully followed Tenth Circuit precedent.

The Tenth Circuit affirmed the district court’s grant of summary judgment to SHS.

Appropriations, Adoption Records, Crime Victim Compensation, and More Bills Signed

On Monday, March 30, 2015, Governor Hickenlooper signed 11 bills into law. To date, he has signed 89 bills in this 2015 legislative session. The bills signed Monday are summarized here.

  • SB 15-191 – Concerning Payment of Expenses of the Legislative Department, by Sens. Mark Scheffel & Morgan Carroll and Reps. Crisanta Duran & Brian DelGrosso. This is the appropriations bill, setting the budget for the 2015-16 state fiscal year.
  • HB 15-1254 – Concerning the Elimination of the General Appropriations Act Limitation in the Definition of “Total Governing Board Appropriation” for the Treatment of Higher Education Appropriations, by Rep. Millie Hamner and Sen. Kent Lambert. The bill clarifies the definition of “Total Governing Board Appropriation” used in the description of higher education funding formulas.
  • HB 15-1188 – Concerning Clarifications to the State Vocational Rehabilitation Program, by Reps. Su Ryden & Dianne Primavera and Sen. Tim Neville. The bill makes several changes to the state vocational rehab program for persons with disabilities.
  • HB 15-1106 – Concerning the Clarification of Access by Eligible Persons to Unredacted Adoption Records that Contain Identifying Information, by Rep. Lori Saine and Sen. Jerry Sonnenberg. The bill clarifies that persons who are able to request and receive certain adoption records under the law may receive unredacted versions of those records.
  • HB 15-1035 – Concerning Changes to Crime Victim Compensation, by Rep. Rhonda Fields and Sen. John Cooke. The bill makes several changes to the crime victim compensation program.
  • HB 15-1004 – Concerning Authorization for Firefighter License Plates to be Issued for Motorcycles and, in Connection Therewith, Making an Appropriation, by Rep. Max Tyler and Sen. Nancy Todd. The bill creates a special firefighter license plate for motorcycles.
  • HB 15-1031 – Concerning a Ban on Powdered Alcohol, by Rep. JoAnn Windholz and Sen. Nancy Todd. The bill prohibits the use, possession, sale, purchase, transfer, or manufacture of powdered alcohol.
  • HB 15-1048 – Concerning Authority of the Commissioner of Insurance to Adopt Principle-Based Life Insurance Reserve Requirements for Life Insurance Policies, by Rep. Angela Williams and Sen. David Balmer. The bill enacts National Association of Insurance Commissioners model legislation that requires the insurance commissioner to adopt the NAIC Standard Valuation Model.
  • HB 15-1209 – Concerning the Highway Maintenance Division of the Department of Transportation, by Rep. Max Tyler and Sen. Ray Scott. The bill updates state law to reflect actual operations of the Department of Transportation, clarifies powers and duties of CDOT’s executive director and chief engineer, and clarifies that annual reports will be filed with the highway maintenance division.
  • HB 15-1150 – Concerning Annual Tier 2 Transfers from the Severance Tax Operational Fund to an Existing Special Account in the General Fund Established by the Mined Land Reclamation Board for the Purpose of Funding Reclamation of Lands that were Obligated to be Reclaimed Under Permits Upon Which Financial Warranties Have Been Forfeited, by Rep. Bob Rankin and Sen. Kevin Grantham. The bill provides funding for the Division of Reclamation, Mining, and Safety to conduct reclamation projects at mine sites with insufficient or failed bonds.
  • SB 15-128 – Concerning Reports to Law Enforcement by Medical Facilities with the Consent of a Victim of Sexual Assault, by Sen. Morgan Carroll and Reps. Lois Landgraf and Dianne Primavera. The bill adds nurses to the list of medical personnel required to report sexual assaults to law enforcement. The bill also clarifies the types of reports required and allows a victim to speak anonymously to law enforcement.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

Bills Allowing Licensed Naturopaths to Treat Young Children, Prohibiting Microbeads in Cosmetics, Permitting Earphones While Driving, and More Signed

On Thursday, March 26, 2015, Governor Hickenlooper signed ten bills into law. To date, he has signed 78 bills this legislative session. The bills signed Thursday are summarized here.

  • HB 15-1012 – Concerning a Sales and Use Tax Exemption for Dyed Diesel, by Rep. Jon Becker and Sen. Jerry Sonnenberg. The bill expands the sales and use tax exemption for dyed diesel, which is only used for off-road vehicles.
  • HB 15-1055 – Concerning the Participation of People Who Are Not State Employees in the State Employee Assistance Program Established by the State Personnel Director, by Rep. Daneya Esgar and Sen. Kevin Grantham. The bill allows dependents of state employees to participate in the state’s employee assistance program as long as the dependent’s participation benefits the employee.
  • HB 15-1075 – Concerning the Authority for a Registered Naturopathic Doctor to Treat Children, by Rep. Joann Ginal and Sen. Larry Crowder. The bill allows registered naturopathic doctors to treat children under the age of 2 if certain conditions are met.
  • HB 15-1117 – Concerning the Clarification of the Application of the “Uniform Electronic Transfers Act” to the Conduct of the Internal Affairs of Domestic Entities, by Rep. JoAnn Windholz and Sen. Lucia Guzman. The bill allows electronic signatures under the Colorado Corporations and Associations Act.
  • HB 15-1137 – Concerning Requests for Multiple Booking Photographs, by Rep. KC Becker and Sen. John Cooke. The bill allows a person requesting multiple booking photographs to sign one release per year for the photographs.
  • HB 15-1144 – Concerning the Prohibition of Synthetic Plastic Microbeads in Personal Care Products, by Rep. Dianne Primavera and Sen. Nancy Todd. The bill prohibits the production, sale, manufacture, or promotion of personal care products containing microbeads. The bill phases in the prohibition between January 1, 2018 and January 1, 2020.
  • HB 15-1192 – Concerning the Ability of Specified Establishments Licensed to Serve Alcohol Beverages for On-Premises Consumption to Become Part of an Entertainment District Authorized by a Local Government, by Rep. KC Becker and Sen. Tim Neville. Senate Bill 11-273 allowed municipalities to create entertainment districts. This bill allows entertainment districts to obtain liquor licenses for specific purposes.
  • HB 15-1207 – Concerning the Use of Earphones While Driving, by Rep. Jovan Melton and Sen. Nancy Todd. The bill allows the use of earphones while driving, as long as only one ear is covered.
  • HB 15-1211 – Concerning License Requirements for Durable Medical Equipment Suppliers, by Rep. Dave Young and Sen. Jerry Sonnenberg. The bill makes several changes to licensing requirements for durable medical equipment providers.
  • SB 15-055 – Concerning State Engineer Administration of Tailwater Ditches, by Sen. Mary Hodge and Reps. Jeni James Arndt & Jon Becker. The bill allows a person using an irrigation ditch system to use a tailwater ditch to return water to a stream in variable amounts.

For a complete list of Governor Hickenlooper’s 2015 legislative decisions, click here.

e-Legislative Report: March 24, 2015

legislationCBA Legislative Policy Committee

For readers who are new to CBA legislative activity, the Legislative Policy Committee (LPC) is the CBA’s legislative policy-making arm during the legislative session. The LPC meets weekly during the legislative session to determine CBA positions on requests from the various sections and committees of the Bar Association.

The following bill was discussed as the only action item taken up at the meeting on Friday, March 20. Other bills of interest from that agenda are tracked and updated below.

HB 15-1272—Timely Filed Claims Not Barred By Laches
Sponsors: Rep. Daneya Esgar (D) & Sen. Chris Holbert (R)
The LPC voted to oppose this bill because Laches is an important equitable defense. Colorado has a long history with the Doctrine of Laches and this bill upsets that balance. We understand the specific nature of the concern addressed in the bill, but the approach to a solution was overbroad. Therefore we voted to oppose HB 1272.

SB 15-069—Repeal Job Protection Civil Rights Enforcement Act
Sponsors: Sen. Laura Woods (R) & Rep. Kevin Priola (R)
The Legislative Policy Committee voted to oppose this bill to maintain a consistent position with the CBA’s position on previous legislation (HB13-1136 which the CBA supported). SB 69 would have reversed the effect of that bill.

HB 15-1292—Resentence Juveniles Life Sentence No Parole
Sponsors: Rep. Daniel Kagan (D)
The LPC voted to support the Juvenile Law Section’s recommendation to support this bill. There was a great deal of discussion. The bill allows for Juveniles who were previously convicted to petition for resentencing. The bill takes into consideration many factors for both victims and offenders.

Bills that the LPC is monitoring, watching or working on can be found at this link on Priority Bill Track.

At the Capitol—Week of March 16

This past week was a slower week for Bar priority bills. A number of bills we are watching and working on have not been scheduled for hearings or debate. We are constantly watching to ensure we are represented and up to date on bills the LPC has taken action on, and expect that this section will be more full after the “Long bill” (the state budget) is passed over the next two weeks.

HB 15-1142—Public Trustee Conduct Electronic Foreclosure Sale
We successfully amended this bill per the Real Estate Sections requirements, working in conjunction with the Denver Public Trustee and Representative McCann.

SB 15-077—Parents Bill of Rights
This bill was Postponed Indefinitely by the House Committee on Public Health Care and Human Services.

New Bills of Interest

The pace of new bill introductions is now slowing down, but there are a few new bills introduced still introduced through the remainder of the session. We will highlight some of the bills we have identified for tracking or monitoring here:

SB 15-200—Private Student Loan Disclosure Requirements
Sponsors: Sen. Andrew Kerr (D) & Sen. Nancy Todd (D)

The bill prohibits a private educational lender, as defined in the bill, from offering gifts to a covered educational institution, as defined in the bill, including public and private institutions of higher education, in exchange for any advantage or consideration related to loan activities or from engaging in revenue sharing. Further, the bill prohibits persons employed at covered educational institutions from receiving anything of value from private educational lenders. The bill makes it unlawful for a private educational lender to impose a fee or penalty on a borrower for early repayment or prepayment of a private education loan and requires a lender to disclose any agreements made with a card issuer or creditor for purposes of marketing a credit card. The bill requires private educational lenders to disclose information to a potential borrower or borrower both at the time of application for a private education loan and at the time of consummation of the loan.

The required disclosures are described in the bill and include, among other disclosures, the interest rate for the loan and adjustments to the rate, potential finance charges and penalties, payment options, an estimate of the total amount for repayment at the interest rate, the possibility of qualifying for federal loans, the terms and conditions of the loan, and that the borrower may cancel the loan, without penalty, within three business days after the date on which the loan is consummated.

SB 15-210—Title Insurance Commission
Sponsors: Sen. Laura Woods (R) & Rep. Jennifer Arndt (D)

The bill creates the title insurance commission (commission). The bill establishes the powers, duties, and functions of the commission and provides for the appointment of the members of the commission. With the exception of rate regulation and licensing, which will continue to be done by the insurance commissioner, the commission participates in the regulation of the title insurance business in Colorado by concurring in rules of the insurance commissioner, proposing rules for approval by the insurance commissioner, and reviewing and concurring in disciplinary actions related to the regulation of the title insurance business. The commission is scheduled to sunset Sept. 1, 2025, subject to continuation after a sunset review as provided by law.

Tenth Circuit: Protected Communications Did Not Cause Employee’s Termination

The Tenth Circuit Court of Appeals issued its opinion in Meyers v. Eastern Oklahoma County Technology Center on Wednesday, January 28, 2015.

Donna Meyers was the adult education coordinator for the EMT program at Eastern Oklahoma County Technology Center. The school lost the records of tuberculosis tests for six students, and a teacher, Ms. Gonzales-Palmer, an Air Evac medic, offered to retest the six instead of asking them to absorb the cost of testing. Ms. Meyers believed the medic had stolen testing materials from Air Evac and instructed her not to test the students. Later, Ms. Meyers discovered the medic had disobeyed her orders. Ms. Meyers contacted Air Evac and agreed to cooperate in their investigation, then met with Ms. Gonzales-Palmer about the incident. Ms. Meyers terminated Ms. Gonzales-Palmer at the meeting.

Ms. Gonzales-Palmer contacted the school superintendent about her termination. The superintendent reinstated Ms. Gonzales-Palmer and warned Ms. Meyers that she lacked authority to terminate employees. The superintendent also admonished Ms. Meyers not to retaliate against Ms. Gonzales-Palmer or discuss the testing with anyone. Shortly thereafter, Ms. Meyers met with the Air Evac supervisor regarding the testing. The superintendent learned of the communication and warned Ms. Meyers that if she continued to discuss the testing or if she retaliated against Ms. Gonzales-Palmer she could be terminated.

Four days later, Ms. Meyers removed Ms. Gonzales-Palmer as a c0-instructor of two classes without consulting her supervisor. When the superintendent learned of this action, he met with Ms. Meyers and informed her she was suspended. The next day, the supervisor learned Ms. Meyers had failed to renew the school’s certification as an EMT training site, and recommended her termination. Ms. Meyers made a written complaint with the Oklahoma Department of Health the same day about the tuberculosis testing. The superintendent wrote a letter advising Ms. Meyers he was recommending her termination and she could appeal his decision, even though she had no right to appeal. Ms. Meyers appeared at the appeal hearing before the school’s board with counsel, but the board voted to terminate her at the end of the hearing.

Ms. Meyers sued under § 1983, alleging denial of the right to free speech regarding her report about the tuberculosis testing and deprivation of due process based on the board’s alleged bias during the hearing. The district court granted summary judgment to the school and superintendent on these claims. Ms. Meyers appealed.

Ms. Meyers claimed that her discussions with the Oklahoma State Board of Health and Air Evac regarding the testing were protected speech and she was wrongfully terminated for engaging in the speech. The district court, and the Tenth Circuit, agreed that the speech was protected but found that Ms. Meyers was not terminated for engaging in the protected speech. The Tenth Circuit applied the five-pronged Garcetti-Pickering test and found that, regarding the Oklahoma State Board of Health, Ms. Meyers’ claim of retaliation failed at the fourth prong because the superintendent did not know about the communication at the time he recommended Ms. Meyers’ termination.

As for the communication with Air Evac, the district court and Tenth Circuit found the retaliation claim failed at the fifth prong, because the superintendent would have recommended Ms. Meyers’ termination regardless of the communication with Air Evac based on  her retaliation against Ms. Gonzales-Palmer. The superintendent had specifically advised her to consult her supervisor before taking any action against Ms. Gonzales-Palmer, so removing her as an instructor was a direct disregard of orders.

The Tenth Circuit next addressed Ms. Meyers’ claim of deprivation of due process and found the claim failed as a matter of law. Ms. Meyers had no protected interest in the meeting with the board.

The district court’s grant of summary judgment to the superintendent and school was affirmed.

Tenth Circuit: Bifurcation of Position Does Not Defeat Comparison for Employment Discrimination Claims

The Tenth Circuit Court of Appeals issued its opinion in Riser v. QEP Energy on Tuesday, January 27, 2015.

Kathy Riser, who was 50 years old in 2013, began working for Questar Exploration and Production Co. in 1997. In 2003, she became an Administrative Services Representative II, where she managed a fleet of 250 vehicles, performed facilities management duties, and managed construction projects in several states. She was the only Questar employee performing fleet management and facilities management duties. In 2010, QEP was spun off from Questar and became a separate entity. Based on the title of Ms. Riser’s job and not her actual duties, she was classified under the new employee classification system as a Grade 5 employee making $22.78 per hour or $47,382 annualized. Twice Ms. Riser requested that her title and salary be changed to reflect her actual duties, but her supervisor, Mr. Beach, would not respond.

In May 2011, QEP created a new position, “Fleet Administrator,” and had Ms. Riser craft a job description for the position based on her fleet management duties. The position was classified as a Grade 7 position with an annual salary of $62,000. QEP hired Matthew Chinn, a 39-year-old man, as Fleet Administrator in June 2011. Ms. Riser trained Mr. Chinn in fleet management duties until her termination in September 2011. QEP stated that Mr. Chinn took over Ms. Riser’s fleet management duties as well as other duties; however, Ms. Riser stated that she was in the process of implementing the new programs when Mr. Chinn was hired.

In August 2011, QEP began discussing creating a new “Facilities Manager” position and spoke with Jason Bryant, a 30-year-old man, about the position. QEP stated they were receiving complaints about Ms. Riser’s work overseeing a North Dakota construction project, but none of these complaints were conveyed to her during the time period and she continued to receive favorable reviews. QEP terminated Ms. Riser on September 8, 2011, stating her termination was due to her poor performance on the North Dakota construction project. She had not received any warning or been placed on suspension prior to her termination. QEP then hired Mr. Bryant as the facilities manager, classified as a Grade 7 employee and making $66,000 annually.

Ms. Riser brought suit against QEP in federal district court in Utah alleging: (1) pay discrimination under the EPA, Title VII, and ADEA; (2) failure to promote under Title VII and the ADEA; and (3) discriminatory discharge under Title VII and the ADEA. The district court granted summary judgment to QEP on all claims. Ms. Riser appealed the summary judgment on all but her failure to promote claim.

The Tenth Circuit found Ms. Riser’s claims to be precisely the sort of factual disputes that preclude summary judgment. On her EPA claims, the district court held that Ms. Riser had not established that her job was “substantially equal” to either Mr. Chinn’s or Mr. Bryant’s job, and also that even if she could establish a prima facie claim of discrimination, the pay scale was based on a gender-neutral system. The Tenth Circuit disagreed on both points, finding “the fact that a female employee performed additional duties beyond a male comparator does not defeat the employee’s prima facie case under the EPA.” The Tenth Circuit noted that QEP’s argument that Ms. Riser had no comparator was especially disingenuous, since her position was bifurcated to create the two jobs which were then given to younger men at a higher rate of pay. The Tenth Circuit similarly disposed of QEP’s argument that its pay scale was gender-neutral, as Ms. Riser’s pay was not based on her actual duties but rather those duties typically performed by people with her title. The Tenth Circuit likewise found merit to Ms. Riser’s Title VII and ADEA claims, since they had a lower burden of proof.

The Tenth Circuit affirmed the district court’s grant of summary judgment on Ms. Riser’s discriminatory discharge claims, finding these were not adequately briefed. In her opening argument, Ms. Riser did not argue that she satisfied her prima facie case, only that one existed. The Tenth Circuit concluded this argument was waived.

The district court’s summary judgment was affirmed in part, reversed in part, and remanded.

Colorado Court of Appeals: Prosecution for Forgery Not Precluded Where Conduct Also Falls Under Employment Penalty Statute

The Colorado Court of Appeals issued its opinion in People v. Clanton on Thursday, February 12, 2015.

Unemployment Compensation Benefits—Forgery—CRS § 8-81-101(1)(a)—Equal Protection—Restitution—Statutory Penalty.

Defendant obtained unemployment compensation benefits to which he was not entitled by using a false Social Security number and a fake military discharge form. The trial court found defendant guilty of forgery. The court sentenced defendant to eighteen months of probation and ordered him to pay $12,397.50 in restitution. That total included a 50% statutory penalty of $4,132.50, which the court believed was required by CRS § 8-81-101(4)(a)(II).

On appeal, defendant contended that he was unlawfully convicted of forgery. He argued that CRS § 8-81-101(1)(a) was the appropriate statute under which he should have been charged, because his misconduct involved making of a false statement of material fact, with intent to defraud, to obtain unemployment compensation benefits. CRS §8-81-101 does not address all criminal activity that may occur in the unemployment compensation context; rather, it addresses certain specific acts that may occur in the context of an application for benefits. Because the General Assembly did not intend to preclude prosecution for forgery where the conduct underlying the charge also arguably violates CRS § 8-81-101(1)(a), the People had the discretion to charge defendant with the more serious offense.

Defendant also contended that the forgery statute, CRS § 18-5-102, fails to provide an intelligible standard by which to differentiate the conduct proscribed from that proscribed by CRS § 8-81-101(1)(a). Therefore, charging him under the forgery statute violated his constitutional right to equal protection of the laws. The forgery statute applicable here includes elements that CRS § 8-81-101(1)(a) does not. Accordingly, the People could charge defendant with forgery without violating his right to equal protection of the laws.

Defendant further contended, the People agreed, and the Court of Appeals concurred that the district court should not have assessed the 50% penalty provided for in CRS § 8-81-101(4)(a)(II) as part of his restitution obligation. That portion of defendant’s sentence, including the statutory penalty as restitution, was vacated, and the case was remanded to the district court to correct the mittimus to reflect the proper amount of restitution.

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

Tenth Circuit: Burden Shifts to Plaintiff to Rebut Defendant’s Claim of Termination for Misconduct

The Tenth Circuit Court of Appeals issued its opinion in Estate of Bassatt v. School District No. 1 in the City & County of Denver on Wednesday, December 31, 2014.

In 2007, Carlos Bassatt was student teaching at West High School in Denver while he pursued a Masters of Education degree from Regis University. On September 14, 2007, Bassatt left the school building, got into his Ford Focus, and reclined the seat. Maria Iams, a district employee, parked next to him, and when she bent to retrieve something in her car, she saw a man masturbating in the Ford Focus. She did not know Bassatt and did not know he worked at West. She reported the incident to school officials, and it was then relayed to West’s resource officer. After reviewing security videos, Iams was able to identify the car but not the person who left the car to enter the school building. The Dean of Students, Dan Trujillo, identified the man as Bassatt.

On the morning of September 17, 2007, Trujillo and West’s principal, Patrick Sanchez, had a meeting with Bassatt and informed him that he had been accused of masturbating in his car in the West parking lot. Bassatt was placed on administrative leave. He was summoned to the Denver Police Department, but ultimately no charges were filed against him. Sanchez sent Bassatt an email on September 19 saying that he was clear to return to West, but later spoke to the district’s Director of Labor Relations, who advised Sanchez that the District Attorney’s decision not to prosecute did not stop the district from taking action against Bassatt.

Sanchez and the Director of Labor Relations met with Bassatt and his wife, who was a teacher at West, on September 26. Bassatt declared that the accusation was racially motivated and the decision to end his placement at West was discriminatory. He was terminated from his placement on September 27, 2007.

Bassatt filed charges with the Colorado Civil Rights Commission (CCRC), alleging discrimination and retaliation by the district. After a two-day hearing, an ALJ concluded Bassatt had failed to prove either discrimination or retaliation. Bassatt appealed to the CCRC, which reversed the ALJ’s determination on the retaliation claim, finding that Bassatt had established a prima facie case of retaliation and the district’s termination was pretextual. The district appealed to the Colorado Court of Appeals, which affirmed the CCRC’s finding that Bassatt had established a prima facie case of retaliation. However, the court remanded to the CCRC to consider the ultimate issue of retaliation.

Before the CCRC could issue its opinion on remand, Bassatt filed suit in the U.S. District Court for the District of Colorado, raising a number of issues, including retaliation in violation of Title VII and in breach of his student teacher agreement. The CCRC then issued its final order on remand, concluding that the district had terminated him in retaliation for his accusations of discrimination, and the district had not provided a non-discriminatory reason for its actions. In August 2012, Bassatt died, and his estate was substituted as plaintiff in the district court action.

The district court granted summary judgment to the district, concluding the estate had failed to make a sufficient showing of pretext to defeat summary judgment on its Title VII claim. It also dismissed his §§ 1981 and 1983 claims, because Bassatt did not have a contract to student teach. The estate appealed.

The Tenth Circuit first noted that it was not bound by the administrative agency’s findings, but the state court’s factual and legal determinations had a preclusive effect as to the Tenth Circuit’s review. The Colorado Court of Appeals’ opinion that the Estate made a prima facie case of retaliation was thus binding on the Tenth Circuit. The Circuit noted that it need only find whether (1) the district provided a legitimate, non-discriminatory reason for its decision, and (2) the estate was able to demonstrate that the reason was mere pretext. The Tenth Circuit found the incident in the parking lot to be a legitimate and non-discriminatory reason for the employment decision and turned to the pretext question.

The Tenth Circuit agreed with the district court that the estate failed to provide sufficient evidence to create a triable issue on pretext. The estate argued that the district court impermissibly shifted the burden of proof, but the Tenth Circuit noted that in employment discrimination actions, the plaintiff must rebut the employer’s claim of misconduct, which the plaintiff here did not do. Next, the estate argued the district court erred in finding Sanchez made a sincere credibility determination in believing Iams, contending insufficient evidence supported her credibility. However, in this case, Sanchez had no direct evidence either way, heard stories from both sides, and decided ultimately to believe Iams. The estate also argued that Sanchez’s first email inviting Bassatt back to work was evidence that he believed Bassatt, but the Tenth Circuit disagreed, finding it was bound by the court of appeals’ decision that specifically reviewed and rejected that position. The Tenth Circuit found no evidence of pretext.

The estate also argued that the CCRC’s second order provided evidence of pretext. However, the Tenth Circuit is not bound by administrative opinions, and found it unpersuasive on review. Turning then to the §§ 1981 and 1983 claims, the Tenth Circuit found again that the estate could not show pretext, and also that there was no employment contract between Bassatt and the district. The estate argued that Bassatt’s student teacher agreement qualified as a contract, but the Tenth Circuit disagreed, finding it did not create a contract.

The Tenth Circuit affirmed the district court’s grant of summary judgment to the school district.

Colorado Court of Appeals: Unemployment Taxes Not Required Where Workers not “Employees” for CESA Purposes

The Colorado Court of Appeals issued its opinion in Whitewater Hill, LLC v. Industrial Claim Appeals Office on Thursday, January 29, 2015.

Agricultural Work—Taxes—Exempt—Colorado Employment Security Act—CRS § 8-70-120(1)(a).

Petitioner Whitewater Hill, LLC (Whitewater) operates a small vineyard and winery. Following an audit, the Colorado Department of Labor and Employment (Department) issued a liability determination concluding that agricultural work performed by certain workers for Whitewater amounted to covered employment and that Whitewater must pay taxes on amounts it paid those workers. The hearing officer concluded that the workers’ services were not employment, but rather exempt agricultural labor. Therefore, Whitewater was not required to pay taxes on the amounts it paid the workers. The Industrial Claim Appeals Officeconcluded that the workers’ services constituted covered employment.

On appeal, Whitewater contended that the workers’ services were exempt agricultural labor under the Colorado Employment Security Act(CESA) and that the Panel misinterpreted CRS § 8-70-120(1)(a). CRS § 8-70-120(1)(a) provides that during the current or preceding year, when a putative employer employs ten or more agricultural workers within each of twenty different weeks, the workers’ services constitute employment. Here, because Whitewater had employed ten or more agricultural workers in only four different weeks from 2011 through the first quarter of 2013, the workers’ services were not “employment” under CRS § 8-70-120(1)(a). Consequently, Whitewater was not required to pay unemployment taxes on amounts it paid the workers. The order was set aside and the case was remanded with directions.

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

SB 15-069: Repealing “Job Protection and Civil Rights Enforcement Act of 2013″

On January 14, 2015, Sen. Laura Woods and Rep. Libby Szabo introduced SB 15-069 — Concerning the Repeal of the “Job Protection and Civil Rights Enforcement Act Of 2013.” This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

In 2013, the general assembly enacted HB13-1136, the “Job Protection and Civil Rights Enforcement Act of 2013″ (act), which established compensatory and punitive damage remedies, as well as front pay, for a person who proves that an employer engaged in a discriminatory or unfair employment practice under state law. These remedies were created in addition to equitable relief, such as back pay, reinstatement, or hiring, that was already available to employment discrimination victims. Additionally, the act: ! Expanded age discrimination claims under state law to persons 70 years of age or older; Authorized the use of moneys in the risk management fund to pay claims for compensatory damages against the state or its officials or employees; and Required the state civil rights commission to create a volunteer working group to assist in education and outreach efforts and provide the commission with information to post on its web site regarding educational resources available to employers to help them understand and comply with antidiscrimination laws. With the exception of the expansion of age-based discrimination claims to individuals who are 70 years of age or older, the bill repeals all components of the act and restores the equitable relief remedies that were available to employment discrimination victims making claims under state law prior to the passage of the act.

The bill was assigned to the Senate Business, Labor, & Technology Committee.