Mesa County Public Library District v. Industrial Claim Appeals Office , 399 P.3d 760 ( 2016 )

COLORADO COURT OF APPEALS 2016COA96
Court of Appeals No. 15CA0966
Industrial Claim Appeals Office of the State of Colorado
DD No. 26790-2014
Mesa County Public Library District,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Laurie A. Gomez,
Respondents.
ORDER AFFIRMED
Division I
Opinion by JUDGE HARRIS
Taubman, J., concurs
J. Jones, J., dissents
Announced June 16, 2016
Bechtel & Santo, LLP, Michael C. Santo, Grand Junction, Colorado, for
Petitioner
No Appearance for Respondent Industrial Claim Appeals Office
Karp Neu Hanlon, P.C., Anna S. Itenberg, Glenwood Springs, Colorado, for
Respondent Laurie A. Gomez
¶1 In this unemployment compensation benefits case, petitioner,
Mesa County Public Library District (Library), seeks review of a final
order of the Industrial Claim Appeals Office (Panel). A hearing
officer disqualified respondent Laurie A. Gomez from receiving
benefits under section 8-73-108(5)(e)(XX), C.R.S. 2015 (failure to
meet established job performance standards), finding that although
she was mentally unable to perform the work, a designation that
would ordinarily entitle her to benefits under section 8-73-108(4)(j),
her mental impairment had been caused in the first instance by her
own poor work performance. Thus, according to the hearing officer,
Ms. Gomez was ultimately at fault for her separation from
employment.
¶2 The Panel reversed, concluding that the hearing officer’s
determination of the etiology of Ms. Gomez’s medical condition was
too attenuated from the cause of separation to be relevant and was
not supported by substantial evidence. We affirm the Panel’s
decision.
1
I. Background
¶3 Ms. Gomez worked for the Library for almost twenty-five years.
At the time of her termination, she was the public services
manager.
¶4 Ms. Gomez began having performance issues in the fall of
2013, shortly after the Library hired a new director. When she
requested additional staff, the director asked Ms. Gomez to prepare
an organizational capacity report to determine if she was effectively
utilizing existing staff. Ms. Gomez had never prepared an
organizational capacity report before, and the director was not
satisfied with her work product, which he characterized as a “data
dump” devoid of analysis, cohesion, and context. Ms. Gomez was
subsequently placed on two successive performance improvement
plans (PIPs) for failing to manage her staff effectively and act
professionally.
¶5 In September 2014, the director placed Ms. Gomez on a third
PIP and told her that if she did not prepare a satisfactory
organizational capacity report by October 7, 2014, she faced
additional disciplinary action, including possible discharge.
2
¶6 Ms. Gomez called in sick on October 7. She returned to work
on October 8, but she did not communicate with her supervisors
about the report and, instead, she spent that afternoon shopping
for supplies for a Library event scheduled for the end of the month.
Ms. Gomez called in sick again on October 9 and did not return to
work thereafter.
¶7 On October 14, she submitted a doctor’s note to her
supervisors, which advised that Ms. Gomez was suffering from an
acute stress disorder and major depressive disorder. The doctor
recommended that Ms. Gomez remain off from work for four to six
weeks so that her condition could stabilize. At the time, Ms. Gomez
was taking several psychotropic medications. The Library granted
Ms. Gomez’s request for time off.
¶8 On October 15, while Ms. Gomez was home on leave, the
director contacted her and requested that she send the
organizational capacity report to him. Ms. Gomez forwarded some
documents to him, but the report was not satisfactory, and the
director terminated her effective October 20, 2014. According to the
hearing officer’s findings, the proximate cause of Ms. Gomez’s
3
separation from employment was her failure to “present or prepare
a report on organizational capacity for the administrative team.”
¶9 At the hearing to determine eligibility for unemployment
compensation benefits, Ms. Gomez attributed her mental health
problems to job-related circumstances. She told the hearing officer
that she felt singled out for disciplinary action by the new director
and believed that he was trying to force her to quit so that he could
replace her with a younger employee. According to Ms. Gomez, her
mental health deteriorated significantly after issuance of the
September 2014 PIP and, by early October, she had frequent
emotional breakdowns at work. She said that her staff offered to
help with tasks because they could see that she was “a mess.”
¶ 10 The hearing officer determined that Ms. Gomez “bec[ame]
mentally unable to perform her job duties.” However, she declined
to award benefits because she further concluded that Ms. Gomez
was “at fault” for becoming mentally unable to complete the report.
According to the hearing officer, Ms. Gomez’s poor job performance
beginning in 2013 led to criticism by her supervisors which, in
turn, brought about her stress and major depressive disorders
4
which ultimately prevented her from completing the report due on
October 7. The hearing officer therefore found that Ms. Gomez had
failed to meet the employer’s established job performance standards
and, under section 8-73-108(5)(e)(XX), she was disqualified from
receiving benefits.
¶ 11 On review, the Panel adopted the hearing officer’s evidentiary
findings that Ms. Gomez’s failure to complete the report was the
reason for her termination and that, at the time the report was due,
Ms. Gomez was mentally unable to complete it. The Panel,
however, rejected, as a matter of law and fact, the hearing officer’s
conclusion that Ms. Gomez was disqualified from receiving benefits
because she was at fault for her own diagnosed mental health
disorders. Accordingly, the Panel awarded Ms. Gomez benefits
under section 8-73-108(4)(j).
¶ 12 The Library now appeals.
II. Standard of Review
¶ 13 We are bound by the hearing officer’s findings of evidentiary
facts if they are supported by substantial evidence in the record.
Harbert v. Indus. Claim Appeals Office, 2012 COA 23, ¶ 7. However,
5
we review de novo the hearing officer’s and the Panel’s ultimate
conclusions of fact. Commc’ns Workers of Am. 7717 v. Indus. Claim
Appeals Office, 2012 COA 148, ¶ 7 (citing Federico v. Brannan Sand
& Gravel Co., 788 P.2d 1268, 1272 (Colo. 1990)) (ultimate
conclusions of fact are conclusions of law or mixed questions of law
and fact which determine the parties’ rights and liabilities and
which are generally phrased in the language of the controlling
statute or legal standard). The determination as to whether a
claimant was “at fault” for the separation from employment is an
ultimate legal conclusion that we likewise review de novo. Bell v.
Indus. Claim Appeals Office, 93 P.3d 584, 586 (Colo. App. 2004).
We will uphold the Panel’s decision unless the findings of fact do
not support the decision or the decision is erroneous as a matter of
law. § 8-74-107(6), C.R.S. 2015; Nagl v. Indus. Claim Appeals
Office, 2015 COA 51, ¶ 7.
III. Discussion
A. Legal Principles
¶ 14 The Colorado Employment Security Act (Act) is designed to
lighten the burden of unemployment on those who are involuntarily
6
unemployed through no fault of their own. Colo. Div. of Emp’t &
Training v. Hewlett, 777 P.2d 704, 706 (Colo. 1989). Pursuant to
the Act, benefits must be granted to an employee unless the job
separation was due to one or more statutorily enumerated causes.
Id. at 707. The Act is to be liberally construed to further its
remedial and beneficent purposes. Id.
¶ 15 In a claim for unemployment compensation benefits under
section 8-73-108, a claimant must first establish a prima facie case
for an award. City & Cty. of Denver v. Indus. Comm’n, 756 P.2d
373, 380 (Colo. 1988). Once established, “the burden of going
forward shifts to the employer to demonstrate that the claimant’s
termination was for a reason that would disqualify the claimant
from the receipt of benefits under the provisions of § 8-73-108(5).”
Ward v. Indus. Claim Appeals Office, 916 P.2d 605, 607 (Colo. App.
1995). If this burden is met, “claimant then must present evidence
to justify the acts which led to the separation and show that he or
she is entitled to benefits under the provisions of § 8-73-108(4).” Id.
7
B. Analysis
1. The Panel Properly Accepted the Hearing Officer’s Findings of
Fact
¶ 16 The Library first argues that the Panel exceeded its authority
by substituting its findings of fact for those of the hearing officer.
According to the Library, the hearing officer found that Ms. Gomez
was terminated because she failed to complete the report, but the
Panel determined that the reason for separation was her mental
inability to perform her job duties. We disagree. In fact, the Panel
deferred to, and adopted, both of the hearing officer’s findings of
fact critical to this appeal. Specifically, the hearing officer first
found that the Library “terminated the claimant because the
claimant did not present or prepare a report on organizational
capacity for the administrative team.” The Panel concluded that
this finding was supported by the record, and we agree. Next, the
hearing officer found that Ms. Gomez suffered from acute stress and
depression, and that she “be[came] mentally unable to perform her
job duties.” The Panel adopted this finding as well, and we likewise
conclude that it is supported by evidence in the record.
8
¶ 17 Thus, we, like the Panel, are bound by the hearing officer’s
finding that Ms. Gomez was terminated for failing to prepare a
report that she was mentally unable to complete. Harbert, ¶ 7.
¶ 18 Because we are bound by these findings, we reject the
Library’s next contention that the evidence demonstrated that Ms.
Gomez’s mental health disorder did not affect her ability to
complete the report. The Library insists that because Ms. Gomez
worked on the report until early October and failed to notify her
supervisors of her mental health problems until after the report’s
due date, the record did not support a finding that Ms. Gomez’s
medical condition made her unable to complete the assigned task.
¶ 19 We acknowledge that an employee with a mental health
condition is not automatically entitled to benefits upon termination,
but must instead demonstrate that her mental health condition
rendered her unable to perform her job duties. See, e.g., Tague v.
Coors Porcelain Co., 30 Colo. App. 158, 161, 490 P.2d 96, 98 (1971)
(employee who suffered two nervous breakdowns was not entitled to
benefits because his mental health condition did not make him
unable to perform the work). Here, though, the hearing officer
9
heard testimony from a number of witnesses, including Ms. Gomez,
who detailed her frequent breakdowns at work, and the hearing
officer found that Ms. Gomez became mentally unable to perform
her job duties. While the evidence on this issue might have been
conflicting, it was up to the hearing officer to resolve conflicts in the
testimony. See Elec. Fab Tech. Corp. v. Wood, 749 P.2d 470, 471
(Colo. App. 1987) (conflicting testimony about employee’s physical
and mental inability to perform her work was properly resolved by
fact finder); see also Tilley v. Indus. Claim Appeals Office, 924 P.2d
1173, 1177 (Colo. App. 1996) (in unemployment proceedings,
hearing officer must resolve conflicting testimony).1
1 The Library also argues that Ms. Gomez did not claim to be unable
to perform her job duties until she filed her brief with the Panel. At
the hearing, though, Ms. Gomez testified that she “tried [her] best”
and her “hardest in preparing that report,” but that she “was
severely depressed and stressed” and “was having several
breakdowns throughout that time”; that she was on “a couple of
different medications for [her] stress disorder and [her] depression”;
and that she believed her supervisors knew that she was having
trouble performing her job duties because “everybody in the library”
noticed “that [she] was a mess” and required assistance from her
staff, who “realiz[ed] that [she] . . . was having a mental
breakdown.” We conclude this issue was presented to the hearing
officer and that, based on the evidence, the hearing officer
reasonably concluded that Ms. Gomez was mentally unable to
perform the work.
10
2. The Panel Properly Rejected the Hearing Officer’s Legal
Conclusion That Gomez Was “At Fault”
¶ 20 Finally, the Library argues that the Panel erred in reversing
the hearing officer’s conclusion that because Ms. Gomez was “at
fault” for her own mental health disorders, she was therefore
disqualified from receiving benefits. We discern no error.
¶ 21 Whether a claimant is entitled to unemployment compensation
benefits depends upon the reason for the claimant’s job separation.
See Debalco Enters., Inc. v. Indus. Claim Appeals Office, 32 P.3d
621, 623 (Colo. App. 2001). Ordinarily, the hearing officer’s
determination that Ms. Gomez was discharged for failing to
complete the report would have led to disqualification of benefits.
See § 8-73-108(5)(e)(XX) (failure to meet established job
performance standards).
¶ 22 However, the hearing officer also determined that Ms. Gomez
was mentally unable to prepare the report. Where certain
evidentiary findings support application of a disqualifying
subsection of the statute, a claimant may still be entitled to benefits
if another evidentiary finding or the totality of the circumstances
establishes that the job separation occurred through no fault of the
11
claimant. See Velo v. Emp’t Sols. Pers., 988 P.2d 1139, 1142 (Colo.
App. 1998); Keil v. Indus. Claim Appeals Office, 847 P.2d 235, 237
(Colo. App. 1993). Typically, a claimant who is discharged because
she is “physically or mentally unable to perform the work” is eligible
to receive benefits. § 8-73-108(4)(j); see also Colo. State Judicial
Dep’t v. Indus. Comm’n, 630 P.2d 102, 103 (Colo. App. 1981).
¶ 23 But after finding that Ms. Gomez was mentally unable to
perform the work, the hearing officer concluded that Ms. Gomez
was nonetheless “at fault” for her separation because she was
responsible for bringing about her own mental health disorders,
which, according to the hearing officer’s interpretation of Ms.
Gomez’s testimony, were triggered by her supervisors’ criticism of
her poor work performance. Because Ms. Gomez “was at fault for
becoming mentally unable to perform her job duties,” the hearing
officer concluded she was disqualified from receiving benefits under
section 8-73-108(5)(e)(XX).
¶ 24 Under the statute, “fault” is a term of art applied to determine
whether the claimant or the employer is responsible overall for the
separation from employment. Cole v. Indus. Claim Appeals Office,
12
964 P.2d 617, 618 (Colo. App. 1998). The concept of “fault” is “not
necessarily related to culpability,” City & Cty. of Denver, 756 P.2d at
377 (quoting Zelingers v. Indus. Comm’n, 679 P.2d 608, 609 (Colo.
App. 1984)); instead, it has been defined as “requiring a volitional
act or the exercise of some control or choice by the claimant in the
circumstances resulting in the separation such that the claimant
can be said to be responsible for the separation.” Cole, 964 P.2d at
618.
¶ 25 By finding that Ms. Gomez was mentally unable to complete
the report (the reason for her termination), the hearing officer
necessarily found that her conduct was nonvolitional — she was
unable, not unwilling, to complete the report — and therefore she
could not be at fault for her separation from employment. Cf. City
& Cty. of Denver, 756 P.2d at 378 (conduct induced by alcoholism is
nonvolitional when employee’s alcoholism has progressed to the
stage that employee is unable to abstain from drinking). However,
the hearing officer then decided that Ms. Gomez was at fault for
being mentally unable to complete the task, meaning that Ms.
Gomez had control over, and made a conscious choice about, her
13
acute anxiety and major depressive disorders. We agree with the
Panel that the hearing officer erred in ascribing fault to Ms. Gomez
for the mental health disorder that prevented her from completing
her assigned job duties.
¶ 26 Under section 8-73-108(4), an employee separated from her
job “shall be given a full award of benefits if any of the following
reasons and pertinent conditions related thereto are determined by
the division to have existed,” including that the employee is
“physically or mentally unable to perform the work or unqualified to
perform the work as a result of insufficient educational attainment
or inadequate occupational or professional skills.” § 8-73-108(4)(j).
We do not read that provision to permit a further inquiry into
whether the employee is “at fault” for bringing about the “pertinent
condition” in the first instance.
¶ 27 We conclude, as did the Panel, that the reason for the
employee’s condition or status under section 8-73-108(4)(j) is too
attenuated from the issue of the proximate cause of the employee’s
separation from employment. Suppose, for example, that a hearing
officer determined that an employee was discharged because she
14
was unable to perform the work as a result of insufficient
educational attainment. Could the hearing officer then inquire into
the reasons for the employee’s failure to attain a certain educational
status? What if the employee had dropped out of college decades
earlier? Would the employee be “at fault” for not obtaining the
necessary education or skills to do the work required by the
employer? But what if the employee had dropped out because a
parent had died, and she no longer had the money to continue her
education?
¶ 28 The hearing officer concluded that Ms. Gomez brought on her
own acute anxiety and major depressive disorder by performing
poorly in 2013 and subjecting herself to criticism from her
supervisors. But what if Ms. Gomez might have been able to
withstand the criticism except that she had a family history of
depression which made her more susceptible to a breakdown? Or
what if Ms. Gomez’s initial poor performance, which led to her
supervisor’s criticism, was based on her inability to do the work
because of inadequate occupational or professional skills (a finding
that might very well be supported by the evidence in this case)?
15
¶ 29 In our view, this provision of the statute simply does not
contemplate a never-ending inquiry into the reasons behind the
employee’s inability to perform the work because those reasons are
too attenuated from the cause of the separation. The Library has
offered no authority for its argument, and we have been unable to
uncover any case law supporting the hearing officer’s analysis.
¶ 30 Instead, at least one division of this court has upheld an
award of benefits under section 8-73-108(4) when the claimant was
clearly “at fault” for the physical or mental inability to perform his
duties. See Pepsi-Cola Bottling Co. of Denver v. Colo. Div. of Emp’t &
Training, 754 P.2d 1382, 1383 (Colo. App. 1988) (claimant
terminated for not reporting his absence in a timely manner was
awarded benefits under subsection (4) because he was physically
unable to do so, even though the physical inability was caused by
his consumption of alcohol and tranquilizers); see also Indus.
Comm’n v. Moffat Cty. Sch. Dist. RE No. 1, 732 P.2d 616, 621 (Colo.
1987) (teacher who was dismissed for drinking with students might
still be eligible for unemployment benefits if she could not perform
her work due to inadequate professional skills). If the employee is
16
unable to do the work because of a mental, physical, or skills-based
impairment, her conduct is nonvolitional and, for purposes of the
statute, she is not at fault for her separation from employment.
¶ 31 Moreover, we note that the Act is intended to provide a speedy
determination of eligibility through a simplified administrative
procedure. Hewlett, 777 P.2d at 707. The ultimate question under
subsection (4)(j) is whether the employee’s conduct was volitional.
In our view, an inquiry into the root cause of an employee’s mental
impairment is simply beyond the scope of the hearing’s purpose.
¶ 32 The hearing officer opined that Ms. Gomez’s acute stress and
major depressive disorders were brought on by her supervisors’
justifiable criticism of her job performance. But Ms. Gomez testified
that her stress was based not on legitimate responses to her poor
work performance, but on a belief that she had been unfairly
singled out for disciplinary action, perhaps based on her age, and
that she felt “threatened” and “harassed” by the director. The
hearing officer did not find Ms. Gomez’s termination to be
discriminatory, but that does not lead inexorably to a conclusion
that Ms. Gomez’s acute stress and major depression were
17
necessarily the result of nothing more than her own performance
deficiencies. Ms. Gomez’s subjective understanding of the
circumstances, even if factually inaccurate, could certainly have
caused — or, at a minimum, contributed to — her mental health
problems. In other words, the record does not definitively establish
the cause of Ms. Gomez’s disorders.
¶ 33 The dissent emphasizes that Ms. Gomez’s poor performance in
2013 was based on volitional conduct. Even if we assume that is
true (although, as we have noted, there is evidence that Ms. Gomez
could not satisfactorily prepare the complex report the director
envisioned because of inadequate occupational or professional
skills), the Library did not terminate Ms. Gomez because of her
performance in 2013. Instead, according to the hearing officer’s
findings, she was terminated in October 2014 for failing to complete
the report — a task the hearing officer said she was incapable of
performing because of her mental impairment. The question is
whether Ms. Gomez was “at fault” for the conduct that was the
proximate cause of her separation, not generally at fault for being a
bad employee.
18
¶ 34 This principle — that nonvolitional conduct does not make the
employee “at fault” for her termination — is why the dissent’s
example about employees Smith and Wilson does not hold up. In
the dissent’s example, Smith and Wilson are both poor-performing
employees. The employer disciplines both employees in the same
way, but only Wilson develops a diagnosed mental health disorder.
The dissent says there would be something odd about treating those
employees differently if they are both eventually terminated for their
poor performance. But if Smith is merely a poor-performing
employee, for whatever reason,2 and Wilson cannot do the work
because she suffers from serious mental health problems, we do not
view those employees as similarly situated; therefore, we do not
agree that it would be odd, when both of them are fired (an action
the employer may take, of course), that only Wilson would receive
unemployment compensation benefits under the statute.
2 However, we note that if Smith was not just a poorly performing
employee but was actually “unqualified to perform the work as a
result of insufficient educational attainment or inadequate
occupational or professional skills,” she too would be entitled to
benefits. § 8-73-108(4)(j), C.R.S. 2015
19
¶ 35 We also do not share the dissent’s concern that our decision
will open the floodgates to employees’ illegitimate claims of mental
incapacity. The dissent says that employees will be able to avoid
responsibility for their poor performance “merely because that poor
performance caused them stress.” For one thing, our decision does
not let poor-performing employees off the hook. No one disputes
that the Library could have terminated Ms. Gomez at any time
during her twenty-five-year tenure. Our decision just affirms the
uncontroversial principle that if an employee is terminated for
conduct that was nonvolitional, she is entitled to receive
unemployment compensation benefits.
¶ 36 But also, our decision will not allow an employee to obtain
benefits “merely” because her poor performance caused her “stress.”
A hearing officer would have to find not just that the employee was
suffering from stress, but that the stress was of such a serious
nature that it rendered her incapable of performing her job duties,
which is the finding the hearing officer made in this case. Ms.
Gomez was not suffering from ordinary job-related stress; she was
diagnosed with acute anxiety and major depressive disorder, a
20
diagnosis the dissent does not question. At the hearing, she
testified that her anxiety and depression were so acute that, several
days before she went on medical leave, she sat in her car “sobbing
and trying to take [her] anxiety medication.” She told the hearing
officer that she was in the midst of a “mental breakdown,” and the
hearing officer credited her testimony.
¶ 37 We agree with the Panel that the hearing officer erred in
determining that Ms. Gomez was at fault for her nonvolitional
conduct.
IV. Conclusion
¶ 38 The Panel’s order is affirmed.
JUDGE TAUBMAN concurs.
JUDGE J. JONES dissents.
21
JUDGE J. JONES, dissenting.
¶ 39 I respectfully dissent. In my view, the hearing officer’s findings
are supported by the record and the hearing officer correctly applied
the law. Consequently, I would reverse the Panel’s order
overturning the hearing officer’s decision.
I. Background
¶ 40 The hearing officer made the following relevant findings.
Claimant worked for employer as a public services manager. In
2013, employer asked claimant to complete an organizational
capacity report because she had requested additional staff and
employer needed data to determine if she was effectively using
existing staff. Also, claimant’s department did not have a clear or
well-organized data collection report. Claimant had “failed to
maintain accurate departmental operational capacity benchmarks,”
had not consistently tracked employee schedules for staffing
purposes, had demonstrated resistance or a lack of initiative when
asked to produce specifics concerning her department’s production,
and had shown favoritism to certain employees in her department.
22
¶ 41 Claimant presented employer with a report that essentially
amounted to a “data dump” lacking cohesion and analysis.
Employer was disappointed with the report. In September 2014,
employer gave claimant a performance improvement plan (PIP) that
required her to prepare a written operational capacity report and to
verbally present the report on October 7, 2014. Employer had
previously counseled claimant and placed her on two other PIPs for
failing to manage her staff effectively and act professionally.
¶ 42 Employer provided claimant with guidelines on how to prepare
the report and encouraged her, if necessary, to get assistance from
her supervisor. The supervisor later made herself available and
gave claimant ideas on how to organize and compile information for
the report. Employer informed claimant that failure to complete the
presentation could lead to additional disciplinary action up to and
including termination of employment.
¶ 43 On October 2, claimant’s supervisor asked claimant about the
October 7 presentation. Claimant said that she probably would not
be ready to give it. The supervisor reminded claimant that employer
had set aside time for the presentation and asked claimant to
23
indicate if there was anything the supervisor could do to help her.
Claimant gave no such indication.
¶ 44 On October 7, claimant called in sick because she had anxiety.
She came in to work the next day, but she did not provide employer
with a copy of the report or ask about when she needed to present
the report. In the afternoon, she left to purchase Halloween candy
and supplies for a library event, although her duties did not include
shopping for the event. That conduct displeased employer’s
director, who informed claimant’s supervisor that he wanted to
discharge claimant.
¶ 45 Claimant was absent from work on October 9 because of
anxiety. Several days later she submitted a note from a nurse
practitioner indicating that she was suffering from acute stress
disorder and depression; employer granted claimant’s request for
leave. Claimant had begun suffering from stress and depression in
2013 after employer began issuing her corrective actions and PIPs
based on her deficient job performance.
¶ 46 On October 14, employer telephoned claimant to see if she had
a copy of the report. Employer’s director had decided that if
24
claimant had completed the report as required, he might not
discharge her. Upon learning that claimant had not completed the
report, employer discharged her.
¶ 47 At the hearing, claimant testified that employer targeted her,
issued the PIPs, and discharged her based on age discrimination.
The hearing officer did not find this testimony persuasive, however,
finding instead that employer discharged claimant for
nondiscriminatory and nonretaliatory reasons.
¶ 48 The hearing officer found that claimant failed to meet
established job performance standards by (1) not presenting or
preparing the report; (2) not seeking assistance from her supervisor
to complete the report when the supervisor reached out to her; and
(3) not attempting to reschedule the presentation of the report and,
instead, deciding to shop for Halloween items. In short, “[t]his
employer terminated the claimant because the claimant did not
present or prepare a report on organizational capacity for the
administrative team.”
¶ 49 Though claimant argued that she was mentally unable to
perform her job, and therefore not at fault, see § 8-73-108(4)(j),
25
C.R.S. 2015 (a claimant is entitled to benefits if she is “physically or
mentally unable to perform the work”), the hearing officer found
that she was at fault because her anxiety and depression were
caused by the employer’s action taken in response to her poor job
performance and her poor job performance justified the employer’s
actions (specifically, the PIPs and criticism).
¶ 50 Based on these findings, the hearing officer determined that
claimant was at fault for the separation and that disqualification
was warranted under section 8-73-108(5)(e)(XX).
¶ 51 On review, the Panel purported to accept the hearing officer’s
evidentiary findings because they were not contrary to the weight of
the evidence. However, the Panel concluded that the cause of
claimant’s anxiety and depression were “remote from the proximate
cause of her separation.” It further concluded that there was
“scant” evidence to support the hearing officer’s finding that
claimant engaged in any volitional conduct that caused her anxiety
and depression and resulting inability to perform her job duties.
Accordingly, the Panel awarded claimant benefits under section 8-
26
73-108(4)(j). The majority agrees with the Panel’s conclusions, but I
do not.
II. Discussion
A. Applicable Legal Standards
¶ 52 Whether a claimant is entitled to unemployment benefits
depends upon the reason for the claimant’s job separation. See
Debalco Enters., Inc. v. Indus. Claim Appeals Office, 32 P.3d 621,
623 (Colo. App. 2001). That reason is a matter to be resolved by the
hearing officer as the trier of fact. See Eckart v. Indus. Claim
Appeals Office, 775 P.2d 97, 99 (Colo. App. 1989).
¶ 53 We may not disturb a hearing officer’s evidentiary findings if
they are supported by substantial evidence or reasonable inferences
drawn from that evidence. Yotes, Inc. v. Indus. Claim Appeals
Office, 2013 COA 124, ¶ 10; Tilley v. Indus. Claim Appeals Office,
924 P.2d 1173, 1177 (Colo. App. 1996). Substantial evidence
means evidence that is probative, credible, and competent, and of a
character that warrants a reasonable belief in the existence of facts
supporting a particular finding, without regard to the existence of
27
contradictory testimony or contrary inferences. Rathburn v. Indus.
Comm’n, 39 Colo. App. 433, 435, 566 P.2d 372, 373 (1977).
¶ 54 “It is the hearing officer’s responsibility, as trier of fact, to
weigh the evidence, assess credibility, resolve conflicts in the
evidence, and determine the inferences to be drawn therefrom.”
Hoskins v. Indus. Claim Appeals Office, 2014 COA 47, ¶ 10. Neither
we nor the Panel may reweigh the evidence or disturb the hearing
officer’s credibility determinations. See id.
¶ 55 The Panel is bound by the hearing officer’s findings of
evidentiary fact if they are not contrary to the weight of the
evidence, which is a more deferential standard of review than the
substantial evidence standard we apply on judicial review in other
contexts. See Samaritan Inst. v. Prince-Walker, 883 P.2d 3, 9-10
(Colo. 1994).
¶ 56 We may set aside the Panel’s decision if, as pertinent here, the
findings of fact do not support the Panel’s decision or the Panel’s
decision is erroneous as a matter of law. See § 8-74-107(6)(c)-(d),
C.R.S. 2015.
28
B. Analysis
¶ 57 Contrary to the majority (and the Panel), I conclude that the
evidentiary findings and the record as a whole support the hearing
officer’s decision to disqualify claimant from receiving benefits
based on her failure to meet job performance standards.
1. The Findings Support Application
of Section 8-73-108(5)(e)(XX)
¶ 58 Substantial evidence in the record supports the hearing
officer’s findings that (1) claimant was discharged for failing to
prepare and present the report; (2) preparing and presenting the
report were within claimant’s known job duties; and (3) claimant
failed to meet established job performance standards by not
preparing or presenting the report, not seeking assistance from
employer, and not attempting to reschedule the presentation.
Consequently, these findings are binding on review. See Yotes,
¶ 10; Tilley, 924 P.2d at 1177.
¶ 59 And these findings are also sufficient to satisfy section 8-73-
108(5)(e)(XX). All that is necessary to establish a disqualification
under that subsection is a showing that a claimant did not do the
job for which she was hired and knew what was expected of her.
29
See Richards v. Winter Park Recreational Ass’n, 919 P.2d 933, 935
(Colo. App. 1996); Pabst v. Indus. Claim Appeals Office, 833 P.2d
64, 65 (Colo. App. 1992).
2. The Findings Support the Hearing
Officer’s Fault Determination
¶ 60 Even if evidentiary findings support application of a
disqualifying subsection of the statute, a claimant may still be
entitled to benefits if the totality of the circumstances establishes
that the job separation occurred through no fault of the claimant.
See Velo v. Emp’t Sols. Pers., 988 P.2d 1139, 1142 (Colo. App.
1998); Keil v. Indus. Claim Appeals Office, 847 P.2d 235, 237 (Colo.
App. 1993).
¶ 61 As the majority notes, in the unemployment context, “fault” is
a term of art used as a factor to determine whether the claimant or
the employer is responsible overall for the job separation. See Cole
v. Indus. Claim Appeals Office, 964 P.2d 617, 618 (Colo. App. 1998).
Fault requires a volitional act or the exercise of some control or
choice in the circumstances leading to the separation such that the
claimant can be said to be responsible for it. See id.; see also
Richards, 919 P.2d at 934. Fault is an ultimate legal conclusion to
30
be based on the established findings of evidentiary fact. See Cole,
964 P.2d at 618-19.
¶ 62 In this case, the hearing officer concluded that claimant was
at fault for being discharged. As discussed, she based that
conclusion on the evidentiary findings that claimant’s anxiety,
depression, and resulting inability to complete the report were
caused by having received the PIPs and job performance criticism
which, in turn, resulted from claimant’s prior volitional conduct of
not performing her job duties.
¶ 63 The Panel rejected this critical finding concerning the fault
issue and the underlying reason for the job separation, concluding
that there was only “scant” evidence to support it. Contrary to the
Panel’s conclusion, however, substantial record evidence, including
primarily claimant’s own testimony, supports the hearing officer’s
finding that claimant’s anxiety and depression directly resulted
from her past job performance deficiencies. For example, when
asked why she had experienced stress, claimant responded that it
was because she “had been given three [PIPs] in less than a year”
concerning issues for which she believed she was being singled out
31
or harassed by employer. Claimant was also asked if the PIPs
caused her “mental problem” and she responded, “[Y]es, they
pushed . . . made this stress on me.” She also testified that her
stress started in 2013. That was the year in which employer hired
a new director and claimant began receiving the PIPs and job
performance criticism. In further explaining the reason for her
stress, claimant testified: “[I]t wasn’t just the PIP[s]. It was the way
[employer was] coming after me.”3
¶ 64 Hence, the record fully supports the hearing officer’s finding
that claimant’s anxiety, depression, and resulting inability to
complete the report were caused by her past job performance
deficiencies, which were volitional. And the hearing officer was not
persuaded by claimant’s testimony that those issues arose from
targeting or discrimination and, instead, found that they were
based on claimant’s volitional conduct of not performing her job.
3 The majority euphemistically acknowledges that claimant
“attributed her mental health problems to job-related
circumstances.” (Emphasis added.) Her testimony is actually
crystal clear that claimant attributed her mental health problems to
job-related stress caused by the employer’s responses to her
perceived poor job performance.
32
¶ 65 Although claimant’s job-related (more accurately, poor job
performance-related) anxiety and depression eventually rendered
her unable to complete or present the report, based on the hearing
officer’s record-supported finding that claimant created that
circumstance through her previous and volitional poor job
performance, I perceive no error in the hearing officer’s conclusion
that claimant was at fault for the job separation. See Cole, 964
P.2d at 619; Richards, 919 P.2d at 934.
¶ 66 The majority concludes, however, that the cause of the
claimant’s mental condition is irrelevant. I disagree.
¶ 67 Nothing in the language of subsection (4)(j) prohibits inquiry
into the cause of the worker’s inability. Moreover, prohibiting such
an inquiry is inconsistent with two critical overarching principles in
unemployment benefit cases: (1) that the actual reason for a
claimant’s job separation determines whether she is entitled to
receive benefits, see Debalco Enters., 32 P.3d at 623; Eckart, 775
P.2d at 99; and (2) the decision whether to award benefits must “at
all times be guided by the principle that unemployment insurance
33
is for the benefit of persons unemployed through no fault of their
own.” § 8-73-108(1)(a).
¶ 68 The hearing officer could properly consider whether claimant
was ultimately responsible for her inability to complete and present
the report. And if, as here, the evidence arguably might support
application of more than one subsection of the unemployment
statutes — in this case section 8-73-108(5)(e)(XX) or section 8-73-
108(4)(j) — hearing officers have wide discretion in determining
which subsection to apply. See Goodwill Indus. of Colorado Springs
v. Indus. Claim Appeals Office, 862 P.2d 1042, 1046 (Colo. App.
1993).
¶ 69 In concluding that inquiry into a cause of inability to perform
a job satisfactorily is not allowed, the majority notes that a claimant
is necessarily at fault for any educational deficiency rendering her
unable to perform the job, and yet loss of a job because of an
educational deficiency entitles a claimant to a full award of benefits.
See § 8-73-108(4)(j). But poor job performance does not cause an
educational deficiency; that is — an educational deficiency cannot
have a job-related cause. So the majority’s analogy is inapposite.
34
True, poor job performance ordinarily does not cause a mental
condition, but, as this case demonstrates, it can. And that is why
inquiry into the underlying cause of the mental condition is
appropriate. Consider the following hypothetical.
¶ 70 Employee Smith performs her job poorly, despite her best
efforts.4 Her employer puts her on improvement plans and
criticizes her performance, but Smith’s performance does not
improve so the employer terminates Smith. In Smith’s case, the
employer’s actions did not cause her to suffer any anxiety or
depression rising to the level of a mental condition.
¶ 71 Employee Wilson performs the same job as Smith and
performs deficiently in the same ways and to the same extent as
Smith. The employer takes the same actions regarding Wilson as it
4 The majority deems the two employees in my hypothetical
dissimilarly situated. But both have the same job, do the same
work poorly in the same ways, and are treated the same by their
employer. That they react differently to the consequences flowing
from their poor performance does not render them dissimilarly
situated. Cf. Kendrick v. Penske Transp. Servs., Inc., 220 F.3d
1220, 1232 (10th Cir. 2000) (employees are similarly situated for
purposes of a disparate treatment claim if they deal with the same
supervisor and are subject to the same standards governing
performance evaluation and discipline).
35
took regarding Smith. Wilson’s performance also does not improve,
and the employer terminates her. However, unlike Smith, the
employer’s actions vis-a-vis Wilson’s job performance caused her
anxiety and depression to an extent constituting a diagnosable
mental condition before she was terminated.
¶ 72 Under the majority’s application of the statutes, Wilson gets
benefits though Smith does not. This seems to me to be an odd
application of the concept of fault. Perhaps the General Assembly
intended such an odd result, but I doubt it. It seems much more
likely to me that the General Assembly intended the mental inability
exception to apply when the mental inability is not merely a
reaction to an employer’s justified and reasonable responses to an
employee’s poor job performance. See Mounkes v. Indus. Claim
Appeals Office, 251 P.3d 485, 487 (Colo. App. 2010) (unemployment
compensation statutes, like other statutes, must be interpreted in a
way to give them sensible effect).
¶ 73 Though I do not question claimant’s diagnosis, I fear that the
majority’s application of the law will encourage underperforming
employees to claim that they ultimately cannot be held responsible
36
for their poor job performance merely because that poor
performance caused them stress.
37