March 27, 2015

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.

Tenth Circuit: Employee Must Be Able to Perform Essential Job Duties to Make Claim Under ADA and Title VII

The Tenth Circuit Court of Appeals issued its opinion in Myers v. Knight Protective Service, Inc. on Monday, December 22, 2014.

Alphonso Myers suffered a workplace injury, and was granted Social Security disability benefits on the ground he was unable to work. He then applied for and was selected for a position as a security guard for Knight Protective Service. During the interview process, he was asked repeatedly if he had any physical disabilities, and answered no each time. However, at work, his supervisor noticed he seemed to be in pain, and Myers confessed to having undergone several back and neck surgeries. The supervisor sent him home and told him he could not return to work unless he passed a physical examination. Several months passed, during which Myers waited for Knight to contact him to schedule the exam, but it did not happen, so Myers considered himself effectively terminated and sued Knight for race and disability discrimination, alleging several torts. The district court dismissed some of Myers’ claims and granted summary judgment to Knight on the rest. Myers appealed.

The Tenth Circuit affirmed the district court. In order to make a claim under the ADA and Title VII, the employee must show he was qualified to perform the essential functions of the job. Myers could not show qualification; in his application with Knight, he acknowledged he would be required to “engage in frequent and prolonged walking, standing, and sitting; to react quickly to dangerous situations; to subdue violent individuals; and to lift heavy weights.” He could do none of those activities.

The Tenth Circuit also rejected Myers’ assertion of disparate treatment based on race, finding no support for his allegations. The Tenth Circuit likewise rejected Myers’ complaint that the district court failed to address his “cat’s paw” argument as to his supervisor, since he failed to establish a prima facie case of discrimination by anyone. Myers’ tortious interference claims also failed for lack of evidence.

The Tenth Circuit affirmed the district court’s dismissal and summary judgment and granted the motion to seal certain medical records.

Tenth Circuit: Federal Arbitration Act Provides Interlocutory Jurisdiction in Limited Circumstances

The Tenth Circuit Court of Appeals issued its opinion in International Brotherhood of Electrical Workers v. Public Service Company of Colorado on Tuesday, December 9, 2014.

In 2009, the International Brotherhood of Electrical Workers (Union) and Public Service Co. entered into a Collective Bargaining Agreement covering Union members who were Public Service employees. Public Service unilaterally amended the agreement approximately two years later, affecting prescription drug prices for retirees. The Union followed dispute procedures and eventually demanded that the issue be submitted to arbitration. Public Service refused, so the Union sued the company and asked the district court to stay the proceedings and compel arbitration. The district court denied the Union’s motion, and it appealed.

The Tenth Circuit first questioned its jurisdiction to hear the interlocutory appeal. The Tenth Circuit found that the instant appeal fell within one of the FAA’s exceptions providing for interlocutory appeals pursuant to Tenth Circuit case law and Supreme Court precedent in Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001).

Addressing arbitrability of the issue at suit, the Tenth Circuit determined that the Collective Bargaining Agreement did not cover disputes related to retired workers, only to current employees. The Union argued the district court failed to apply the presumption in favor of arbitrability, but the Tenth Circuit disagreed, finding instead that the court evaluated the presumption and held it inapplicable. The Union also argued that the district court erred by addressing the underlying merits of the dispute, but the Tenth Circuit examined the record and found no evidence of merit review.

The Tenth Circuit affirmed the district court’s order denying arbitration. Judge Hartz concurred with the finding of jurisdiction but dissented with the panel’s finding that the dispute was not arbitrable.

Tenth Circuit: Surmise and Conjecture Insufficient to Establish Causal Connection Between Discrimination Claim and Refusal to Promote

The Tenth Circuit Court of Appeals issued its opinion in Ward v. Jewell on Monday, November 24, 2014.

Mike Ward was once a supervisor for the Department of the Interior, Bureau of Reclamation. After another employee filed a charge of discrimination against Mr. Ward, he was demoted and Mr. Durrant took over his supervisory role. Mr. Ward complained to the EEOC about the reorganization, and a few years later, he tried unsuccessfully to get his old job back. Later, he applied for a managerial position in Provo, Utah, but was not selected. He invoked Title VII, blaming his employer for retaliation for failing to give him his old job back and passing over him for the Provo position. To survive summary judgment, he had to show a connection between the protected activity and the refusal to give him his old job back or hire him for the other supervisory position.

The Tenth Circuit analyzed Mr. Ward’s Title VII claims and found that he did not show a connection between the protected activity and the employment actions. Because of the remoteness in time between Mr. Ward’s EEOC claim and the Department’s refusal to terminate or demote Mr. Durrant and give Mr. Ward his old job back, Mr. Ward needed to use additional evidence to establish a causal connection between the two events. Mr. Ward could only produce evidence of a causal connection using surmise and conjecture, which was insufficient to be probative of retaliation, and a reasonable fact-finder could not infer retaliation from the decision to keep another employee in his job.

As to the second claim, the Tenth Circuit again found causation lacking in the failure to hire Mr. Ward for the Provo position. Mr. Ward would have had to prove retaliation through a “cat’s paw” theory, imputing the biased motive of a subordinate to the final decision-maker. Mr. Ward could not advance any evidence to show that the final decision-maker relied on information from subordinates. An initial panel recommended two candidates (Mr. Ward was not one of the two) to the final hiring agent, Mr. Walkoviak, but Mr. Walkoviak instead interviewed all five applicants for the Provo position and decided to hire an applicant based on his experience. The panel ultimately had little to no input on Mr. Walkoviak’s hiring decision, and the “cat’s paw” theory failed. Mr. Ward was unable to show any retaliation based on Mr. Walkoviak’s failure to hire him for the Provo position.

The Tenth Circuit found Mr. Ward unable to show discriminatory motive for either of the employment decisions, and affirmed the district court’s summary judgment in favor of the Department.

Colorado Court of Appeals: Procedural Errors in District Court Review Required Reversal

The Colorado Court of Appeals issued its opinion in Nixon v. City & County of Denver on Thursday, December 18, 2014.

Police Officer—Employment—Discharge—Commission of a Deceptive Act—Administrative Agency.

Respondents, the City and County of Denver (City) and its Manager of Safety, discharged Nixon, a former police officer with the Denver Police Department, for his involvement in an incident involving the arrest of citizens outside a Denver restaurant. Nixon was discharged for violating departmental rule RR-112.2 (Commission of a Deceptive Act) in connection with his report of the arrest incident. After Nixon submitted his report, the City discovered that the events had been captured on a video surveillance camera. The Manager of Safety discharged Nixon in part because of perceived discrepancies between his report and the video footage. The district court upheld the Civil Service Commission’s (Commission) decision to discharge him

In a CRCP 106(a)(4) proceeding such as this, the appellate court’s review is limited to determining whether the Commission exceeded its jurisdiction or abused its discretion. Here, the Commission erred by (1) holding that it was bound by the hearing panel’s findings of facts, and (2) failing to make ultimate conclusions of factas to whether Nixon “willfully, intentionally, or knowingly commit[ted] a materially deceptive act, including, but not limited to, verbally departing from the truth, making a false report, or intentionally omitting information,” as provided in RR-112.2. Therefore, the Commission committed an error of law. Further, the district court erred by making its own findings in lieu of remanding the case to the Commission. Accordingly, the district court’s order was reversed and the case was remanded to the Commission for reconsideration of its decision regarding Nixon.

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

Tenth Circuit: Plaintiff Denied Due Process When Not Allowed Hearing on Allegations of Sexual Harassment

The Tenth Circuit Court of Appeals issued its opinion in McDonald v. Wise on Tuesday, October 28, 2014.

Wayne McDonald was a Special Assistant to Denver Mayor Michael Hancock in 2011 and 2012. He was appointed by the mayor to serve “at the pleasure of the Special Assistant,” and in his official duties, he worked closely with Denver police officer Leslie Wise, who provided security to the mayor. He communicated with Ms. Wise on and off duty, discussing both work-related and personal matters. Between September 2011 and March 2012, Ms. Wise called Mr. McDonald at least 41 times on his personal phone, with calls as early as 6:26 a.m. and as late as 7:39 p.m. On November 3, 2011, unbeknownst to Mr. McDonald, Ms. Wise recorded two of these calls. At least 3/4 of the calls from Ms. Wise to Mr. McDonald occurred after November 3, 2011. She also gave him a Christmas gift, attended church with him, and met his family. They last spoke on March 14, 2012, when Ms. Wise telephoned Mr. McDonald.

On May 18, 2012, the mayor’s deputy chief of staff and the city attorney informed Mr. McDonald that Ms. Wise had accused him of sexual harassment and produced the two recorded phone calls from November 3, 2011. Mr. McDonald denied the allegations and agreed to participate fully in an investigation. He left the meeting with the understanding that he was suspended pending the outcome of an investigation and hearing. At a subsequent meeting on May 21, Mr. McDonald was told he could either resign or be fired due to the allegations. Mr. McDonald requested an investigation and opportunity to defend himself, but was fired on the spot. The mayor and his staff subsequently informed the news media that Mr. McDonald was fired for sexual harassment. Mr. McDonald applied for unemployment compensation benefits, but was denied based on his termination for sexual harassment. He appealed to the Colorado Department of Labor, and the hearing officer determined Mr. McDonald was not responsible for the separation from employment. Mr. McDonald has not been able to find subsequent employment, and has been told by potential employers that his termination for sexual harassment is the reason. He brought suit against the city, the mayor, and the mayor’s press secretary for due process violations, breach of contract, and unlawful disclosure of confidential information. He sued Ms. Wise for defamation. The district court rejected all of his claims, and this appeal followed.

The Tenth Circuit first addressed Mr. McDonald’s claims that he was deprived due process of the law for both property and liberty interests. The Tenth Circuit found that Mr. McDonald did not have a property interest in his continued employment, because he served at the pleasure of the mayor and as such was an at-will employee. He could not have had a property interest in continued employment because of his at-will status, and the district court correctly dismissed this claim. The Tenth Circuit reached a different outcome as to Mr. McDonald’s liberty interest in his good name and continued employment. The mayor said at a press conference that Mr. McDonald was terminated for sexual harassment, not because of allegations, thus effectively affirming the allegations in a public forum. The statements called Mr. McDonald’s good name into question, and Mr. McDonald has been unable to secure further employment due to the statements. The Tenth Circuit determined that Mr. McDonald’s liberty interest was infringed upon, and next turned to the question of whether he had a chance to clear his name at a proper name-clearing hearing. Because Mr. McDonald received no hearing at all on this issue, the Tenth Circuit found a serious deprivation of due process related to his protected liberty interest, and reversed the district court. However, the Tenth Circuit found that the mayor’s press secretary need not be named in her official capacity in the suit, since the mayor and the city were named. On remand, the proper parties for this issue are solely the mayor and the city.

Mr. McDonald also contended that his termination was a breach of his employment contract with the city. The Tenth Circuit disagreed, finding as above that his employment was at will, and his claim is not one for which relief can be granted. The Tenth Circuit likewise disposed of his claim regarding non-disclosure of personnel records under the Colorado Open Records Act, because there is no private right of action under CORA and he did not allege sufficient reason to amend his complaint.

Finally, the Tenth Circuit turned to Mr. McDonald’s defamation claim against Ms. Wise. The district court dismissed his defamation claim, finding qualified immunity for Ms. Wise, and that even if she were not immune, Mr. McDonald failed to allege a viable defamation claim. The Tenth Circuit disagreed with the trial court’s reasoning, finding instead that Ms. Wise was not entitled to qualified immunity since her actions were willful and wanton. Mr. McDonald’s complaint alleged sufficient facts to support an inference of willful and wanton conduct, including the numerous phone calls made to him by Ms. Wise after the date of the alleged sexual harassment, and he was entitled to a trial on the merits. As to the defamation claim, the Tenth Circuit found that Ms. Wise held no qualified privilege since she made the allegedly defamatory statements with actual malice, and the district court erred by concluding Ms. Wise was immune from liability.

The Tenth Circuit affirmed the district court’s dismissal of Mr. McDonald’s property interest due process claim, breach of employment contract claim, and CORA violation claim. The Tenth Circuit reversed the district court’s dismissal of Mr. McDonald’s liberty interest due process claim and defamation claim against Ms. Wise, and remanded for further proceedings.