The Colorado Court of Appeals issued its opinion in City & County of Denver v. Gutierrez on Thursday, May 19, 2016.
Silver Gutierrez is a captain with the Denver Sheriff’s Department (DSD) and is on the board of the Denver Sheriff’s Foundation. Cheryl Arabalo is also a DSD captain and board member for the Foundation. On August 26, 2010, Arabalo went to Gutierrez’s office. Gutierrez was on the phone but he gestured for Arabalo to lift up her shirt and expose her breasts and then to sit on his lap. Two months later, Arabalo filed a complaint with the Colorado Civil Rights Division, alleging sexual harassment.
A hearing officer with the DSD Internal Affairs Bureau found that this type of behavior was prevalent among board members, who had a “locker room” culture and frequently engaged in sexualized behavior with each other. The DSD suspended Gutierrez for 75 days for violations of several Departmental Orders (DOs), but a hearing board reduced the suspension to 30 days. The hearing board decided that while Gutierrez’s conduct violated some of the DOs, it did not satisfy the criteria for the most egregious conduct.
The City appealed the hearing board’s decision to the district court pursuant to C.R.C.P. 106(a)(4). The district court determined the board had abused its discretion by applying a subjective standard rather than an objective standard to Gutierrez’s conduct. The district court remanded to the hearing board to reconsider, and Gutierrez appealed.
On appeal, the court of appeals agreed with the district court that, although the hearing board stated it was using objective criteria, it actually evaluated Gutierrez’s conduct using subjective standards. The hearing board considered the Foundation board’s “locker room” atmosphere and sexualized behavior in finding that Gutierrez’s conduct was not that bad. The court of appeals found this was in error, and the hearing board should have viewed the conduct as it would appear to an outside observer.
The court of appeals affirmed the district court and remanded to the hearing board for determination of appropriate disciplinary action.