v. Elder

The summaries of the Colorado Court of Appeals published opinions
constitute no part of the opinion of the division but have been prepared by
the division for the convenience of the reader. The summaries may not be
cited or relied upon as they are not the official language of the division.
Any discrepancy between the language in the summary and in the opinion
should be resolved in favor of the language in the opinion.
SUMMARY
November 14, 2019
2019COA172
No. 18CA1987, Williams v. Elder — Employment — Colorado
Anti-Discrimination Act — Age Discrimination — Compensatory
Damages; Government — Colorado Governmental Immunity Act
In this employment discrimination case, a division of the court
of appeals considers for the first time whether the Colorado
Anti-Discrimination Act (CADA) permits the recovery of
compensatory damages for age and retaliation claims against a
public sector employer or whether such claims are barred by the
Colorado Governmental Immunity Act (CGIA). The division
concludes that the plain language of section 24-34-405(3)(g), C.R.S.
2019, precludes a plaintiff from recovering compensatory damages
for an age discrimination claim. The division further concludes that
the CADA permits the recovery of compensatory damages for a
retaliation claim and that the CGIA does not bar recovery. Finally,
the division disagrees with the majority in Houchin v. Denver Health
& Hospital Authority, 2019 COA 50M, and concludes that section
24-34-405(8)(g) exempts compensatory damages for discrimination
claims (except for age discrimination) from the CGIA. The order is
affirmed in part and reversed in part.
COLORADO COURT OF APPEALS 2019COA172
Court of Appeals No. 18CA1987
El Paso County District Court No. 18CV30745
Honorable Erin Sokol, Judge
Timothy Williams,
Plaintiff-Appellee,
v.
Bill Elder, in his official capacity as Sheriff of El Paso County, Colorado; and El
Paso County Sheriff’s Office
Defendants-Appellants.
ORDER AFFIRMED IN PART AND REVERSED IN PART
Division I
Opinion by JUDGE FREYRE
Pawar and Graham*, JJ., concur
Announced November 14, 2019
Livelihood Law, LLC, Euell Thomas, Rachel E. Ellis, Denver, Colorado, for
Plaintiff-Appellee
Diana K. May, County Attorney, Kenneth R. Hodges, Senior Assistant County
Attorney, Brian E. Schmid, Senior Assistant County Attorney, Peter A.
Lichtman, Senior County Attorney, Colorado Springs, Colorado, for
Defendants-Appellants
Cornish & Dell’olio, P.C., Ian D. Kalmanowitz, Bradley J. Sherman, Colorado
Springs, Colorado, for Amicus Curiae Colorado Plaintiff Employment Lawyers
Association
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art.
VI, § 5(3), and § 24-51-1105, C.R.S. 2019.
¶1 This employment discrimination case presents an issue of first
impression — whether a complaint that seeks compensatory
damages under the Colorado Anti-Discrimination Act (CADA) is
barred by the Colorado Governmental Immunity Act (CGIA).
Defendants, El Paso County Sheriff Bill Elder and the El Paso
County Sheriff’s Office (collectively EPSO), challenge the district
court’s order finding that the relief requested by plaintiff, Timothy
Williams, is equitable and, therefore, not subject to the CGIA. For
the reasons detailed below, we affirm in part and reverse in part.
I. Factual and Procedural Background
¶2 According to the complaint, the EPSO hired Mr. Williams in
2002 and promoted him to the rank of lieutenant in 2015. On
March 17, 2016, Sheriff Elder ordered all EPSO employees to
complete a survey that asked for their retirement eligibility date.
Mr. Williams reported that his retirement eligibility date was June
1, 2018.
¶3 On November 6, 2016, Sheriff Elder met with Mr. Williams,
made derogatory remarks about wanting employees to “check out,”
and told Mr. Williams that if he “couldn’t cut it,” he needed to “get
out.” The next day, Sheriff Elder demoted Mr. Williams from
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lieutenant to senior deputy. To avoid adverse retirement benefit
consequences, Mr. Williams resigned on November 8, 2016. The
EPSO replaced him with a younger employee. Mr. Williams then
filed age discrimination charges with the Colorado Civil Rights
Division and Equal Employment Opportunity Commission, on April
4, 2017.
¶4 While those charges were pending, the EPSO received a
Colorado Open Records Act (CORA) request for documents
concerning the Commission on Accreditation of Law Enforcement
Agencies. In its response, the EPSO alleged that Mr. Williams took
accreditation documents with him when he retired. Mr. Williams
claimed this was false and that the assertion constituted retaliation
for alleging age discrimination.
¶5 On March 27, 2018, Mr. Williams filed his complaint in district
court alleging (1) age discrimination and (2) retaliation related to the
CORA request. The EPSO filed a motion to dismiss under C.R.C.P.
12(b)(5). Then, the court permitted Mr. Williams to amend his
complaint. The EPSO moved to dismiss the amended complaint
under C.R.C.P. 12(b)(1) and (b)(5), alleging that Mr. Williams failed
to exhaust his administrative remedies on the retaliation claim,
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failed to state a claim for relief, and both compensatory damages
and front pay were legal remedies barred by the CGIA.
¶6 In a detailed written order, the district court found that Mr.
Williams had exhausted all his administrative remedies and that his
complaint stated claims for relief, but it ordered supplemental
briefing on whether his requested relief — front pay and
compensatory damages — were legal remedies barred by the CGIA.
In a second thorough written order, the district court found that
front pay is an equitable remedy not barred by the CGIA. It further
found that under the 2013 amendments to the CADA,
compensatory damages are not barred by the CGIA.
¶7 The EPSO seeks review of this second order under section 24-
10-108, C.R.S. 2019. After briefing was completed, a division of
this court announced Houchin v. Denver Health & Hospital
Authority, 2019 COA 50M, ¶ 20, in which the majority held that
back pay is an equitable remedy, exempt from the CGIA. It further
held that while the 2013 amendments to the CADA expanded the
remedies available to victims of discrimination to include
compensatory damages, such expansion did not apply to the
Denver Health and Hospitals Authority (a political subdivision of the
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state), but only to Colorado state employers. Id. at ¶ 22. Thus, it
concluded that Houchin’s request for compensatory damages was a
legal remedy subject to the CGIA. Id. at ¶ 25.
¶8 The partial dissent disagreed with this construction of “state,”
believed that “state” includes political subdivisions of the state, and
concluded that subsection 8(g) of the CADA, making the CGIA
inapplicable to CADA claims, should allow Houchin to seek
compensatory damages. Id. at ¶¶ 28-32 (Berger, J., concurring in
part and dissenting in part).
¶9 We requested supplemental briefing on Houchin’s application
to this case. After considering the supplemental briefs and the
statutory language, we conclude that the 2013 amendments require
us to analyze the age discrimination and retaliation claims
separately. We first conclude that a plaintiff may not obtain
compensatory damages for an age discrimination claim under the
CADA because the plain language of section 24-34-405(3)(g), C.R.S.
2019, limits the remedies for such claims to those set forth in
section 24-34-405(2), which do not include compensatory damages.
Therefore, we reverse the portion of the court’s order concluding
that compensatory damages for age discrimination are not subject
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to the CGIA. We conclude that the CGIA bars the recovery of
compensatory damages for age discrimination.
¶ 10 However, we conclude that front pay for an age discrimination
claim constitutes an equitable remedy under the CADA and is not
barred by the CGIA. Therefore, we affirm the portion of the court’s
order denying EPSO’s motion to dismiss for age discrimination
related to front pay.
¶ 11 We next conclude that the CADA does not restrict the
remedies for a retaliation claim and that this claim is subject to
section 24-34-405(8)(g). We conclude that compensatory damages
under the CADA are merely incidental to CADA’s fundamental
purpose of eliminating discriminatory practices in the workplace.
We also agree with the partial dissent in Houchin that the word
“state” in subsection (8)(g) includes agencies like the EPSO. See
Houchin, ¶¶ 58-59 (Berger, J., concurring in part and dissenting in
part). Accordingly, we affirm the court’s order denying EPSO’s
motion to dismiss the retaliation claim.
II. Age Discrimination
¶ 12 We first address the EPSO’s challenge to Mr. Williams’ age
discrimination claim because the General Assembly has chosen to
5
treat this form of discrimination differently from others. Under the
plain language of section 24-34-405(3)(g), which limits the remedies
for age discrimination to those set forth in section 24-34-405(2), we
conclude that Mr. Williams may not obtain compensatory damages
for this claim and reverse this portion of the order. However,
because section 24-34-405(2)(a)(II) plainly provides front pay relief,
we affirm that portion of the court’s order denying EPSO’s motion to
dismiss this claim.
A. Standard of Review and Law
¶ 13 Because the district court decided a question of law, we review
the issue de novo. City of Colorado Springs v. Conners, 993 P.2d
1167, 1171 (Colo. 2000). We read statutes “with a goal of giving
‘consistent, harmonious, and sensible effect to all its parts.’” People
v. Summer, 208 P.3d 251, 254 (Colo. 2009) (quoting People v. Dist.
Court, 713 P.2d 918, 921 (Colo. 1986)). “But we avoid construing a
statute to render any of its words superfluous or to lead to an
absurd result.” People in Interest of M.C., 2012 COA 64, ¶ 13.
¶ 14 The CGIA provides public entities, like the EPSO, immunity
against all “claims for injury which lie in tort or could lie in tort,”
subject to nine exceptions not at issue. § 24-10-106(1), C.R.S.
6
2019. True tort claims seek compensation for injuries caused by
wrongful conduct that has been recognized as detrimental to an
ordered society. See Castro v. Lintz, 2014 COA 91, ¶ 27. The
purpose of the CGIA is to limit the potential liability of public
entities and the overburdening of taxpayers for compensatory
damages in tort. § 24-10-102, C.R.S. 2019.
¶ 15 In contrast, CADA claims, while similar to torts, are “not
designed primarily to compensate individual claimants.” Connors,
993 P.2d at 1174. Instead, their purpose is “to fulfill the ‘basic
responsibility of government to redress discriminatory employment
practices on the basis of race, creed, color, sex, age, national origin,
or ancestry.’” Id. (quoting Colo. Civil Rights Comm’n ex rel. Ramos v.
Regents of the Univ. of Colo., 759 P.2d 726, 731 (Colo. 1988)). 1
Thus, “any benefits to an individual claimant, such as the recovery
of back pay, are ‘merely incidental’ to [CADA’s] greater purpose of
eliminating workplace discrimination.” Connors, 993 P.2d at 1174
(quoting Brooke v. Rest. Servs., Inc., 906 P.2d 66, 71 (Colo. 1995)).
1 Section 24-34-402(1)(a) has been amended since Connors to
include disability, sexual orientation, and religion. Ch. 295, sec. 2,
§ 24-34-402(1)(a), 2007 Colo. Sess. Laws 1254.
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The CADA remedies, therefore, are equitable in nature, do not
sound in tort, and are not barred by the CGIA. Id. at 1176-77.
¶ 16 In 2013, the General Assembly expanded the remedies
available under the CADA to include punitive and compensatory
damages. Ch. 168, sec. 1, § 24-34-405, 2013 Colo. Sess. Laws 550.
A claimant may now seek compensatory and punitive damages
against an employer who “is found to have engaged in an
intentional discriminatory or unfair employment practice . . . .”
§ 24-34-405(3)(a). 2 As relevant here, section 24-34-405(3)(g)
provides as follows:
In a civil action involving a claim of
discrimination based on age, the plaintiff is
entitled only to the relief authorized in
subsection (2) of this section . . . if the court
finds that the defendant engaged in a
discriminatory or unfair employment practice
based on age.
(Emphasis added.)
¶ 17 Section 24-34-405(2)(a) provides:
In addition to the relief authorized by section
24-34-306(9), the commission or the court
may order affirmative relief that the
2 Punitive damages, not at issue here, may not be sought against
state or political subdivision employers. § 24-34-405(3)(b)(I), C.R.S.
2019.
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commission or court determines to be
appropriate, including the following relief,
against a respondent who is found to have
engaged in an unfair or discriminatory
employment practice:
(I) Reinstatement or hiring of employees, with
or without back pay. If the commission or
court orders back pay, the employer,
employment agency, or labor organization
responsible for the discriminatory or unfair
employment practice shall pay the back pay to
the person who was the victim of the practice.
(II) Front pay; or
(III) Any other equitable relief the commission
or court deems appropriate.
(Emphasis added.)
¶ 18 Section 24-34-405(3)(e) provides:
Compensatory or punitive damages awarded
pursuant to this subsection (3) are in addition
to, and do not include, front pay, back pay,
interest on back pay, or any other type of relief
awarded pursuant to subsection (2) of this
section.
¶ 19 The 2013 amendments also added section 24-34-405(8)(g),
which provides:
A claim filed pursuant to this subsection (8) by
an aggrieved party against the state for
compensatory damages for an intentional
unfair or discriminatory employment practice
is not subject to the “Colorado Governmental
Immunity Act”, article 10 of this title.
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B. Analysis
¶ 20 We conclude that the plain language of section 24-34-405(3)(g)
limits age discrimination remedies to those enumerated in
subsection (2). And, as relevant here, subsection (2) permits relief
for front pay, but does not include compensatory damages as stated
in subsection (3)(e). To the extent the EPSO asserts that front pay
“sounds in tort,” is a legal remedy, and is subject to the CGIA, we
disagree, because the statutory language refutes that assertion.
Therefore, we affirm the court’s order permitting Mr. Williams to
seek front pay for his age discrimination claim, but we reverse the
court’s order as to his compensatory damages request and conclude
that it is barred by the CGIA.
III. Retaliation Claim
¶ 21 The EPSO contends that compensatory damages and front pay
under the CADA sound in tort or could sound in tort, and, thus, are
legal remedies barred by the CGIA. It urges us to follow the
Houchin majority and to hold that compensatory damages are a
legal remedy subject to the CGIA.
¶ 22 The Houchin majority narrowly construed Connors and
reasoned that “the type of claims asserted, and the nature of the
10
relief sought by the plaintiff, determine[] the framework for deciding
whether the CGIA applie[s].” ¶ 18. It then held that compensatory
damages requested under the CADA are not equitable in nature but
constitute relief for personal injuries “suffered as a consequence of
prohibited conduct” and, thus, were subject to the CGIA. Id. at ¶
20 (quoting Connors, 993 P.2d at 1176). In the majority’s view, the
CGIA bars some CADA claims for relief (compensatory damages)
and not others (equitable claims like back pay and reinstatement).
¶ 23 Taking a broader view of Connors, the partial dissent reasoned
that whether a statute is subject to the CGIA should be determined
not only by looking at the nature of the relief sought, but also by
examining the “‘purposes of [the statute]’ and the ‘nature of the
injuries.’” Id. at ¶ 35 (Berger, J., concurring in part and dissenting
in part) (quoting Connors, 993 P.2d at 1173, 1175). Recognizing
that we are not bound by the majority in Houchin, People v. Smoots,
2013 COA 152, ¶ 21, we agree with the partial dissent, because its
reasoning is supported by supreme court precedent subsequent to
Connors and is consistent with the Connors holding. Colo. Dep’t of
Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 690 (Colo. 2008)
(“[T]he question of coverage by the [CGIA] ultimately turns on the
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source and nature of the government’s liability, or the nature of the
duty from the breach of which liability arises.”); Robinson v. Colo.
State Lottery Div., 179 P.3d 998, 1006 (Colo. 2008) (“[T]he nature of
the relief is not dispositive as to the question of whether a claim lies
in tort. Rather, the relief requested is merely an aid in
understanding the duty breached or the injury caused to determine
if the claim lies or could lie in tort.”).
¶ 24 Our supreme court identified the CADA’s purpose as
to make the claimant whole within a particular
setting, i.e., to place the claimant in the
position she would have been in but for the
discriminatory conduct. These forms of relief
. . . are equitable in nature and are aimed at
eliminating workplace discrimination, not
compensating individuals for their particular
injuries arising from violations of the [CADA].
Connors, 993 P.2d at 1175 (citation omitted). In our view, the 2013
amendments to the CADA did not change its fundamental purpose.
Houchin, ¶ 43 (Berger, J., concurring in part and dissenting in
part). Instead, the expanded remedies available under the
amendments remain “merely incidental” to the CADA’s primary
purpose of ending workplace discrimination. See Brooke, 906 P.2d
at 71.
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¶ 25 As well, the monetary limitations set by the CADA for
compensatory damages support its underlying non-tort purpose.
See § 24-34-405(3)(d)(I)-(II). The compensatory damages cap is
consistent with the “incidental” nature of any individual benefit a
claimant receives under the CADA. Thus, the General Assembly’s
inclusion of compensatory damages in the CADA does not alter the
CADA’s primary objective of eradicating workplace discrimination.
See Connors, 993 P.2d at 1174. Accordingly, we conclude that the
compensatory damages remedy, added to the CADA in 2013, does
not lie in tort and is not subject to the CGIA, because it does not
relieve “tort-like personal injuries.” Id. at 1175.
¶ 26 As well, we conclude that section 24-34-405(8)(g) exempts
compensatory damage requests for discrimination claims (other
than those for age discrimination) from the CGIA. We observe that
the General Assembly specifically referenced the CGIA and stated
its intent to prohibit the recovery of punitive damages from state
employers in section 24-34-405(3)(b)(I) of the amendments. But in
the same amendment that added compensatory damages to the
CADA in subsection (3)(g), the General Assembly clarified, in
subsection (8)(g), that compensatory damages sought against the
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state are not subject to the CGIA. Reading these provisions
together, as we must, and recognizing that the General Assembly
enacted these amendments knowing that Connors considered the
CADA remedies to be equitable in nature, we conclude that the
General Assembly intended that compensatory damages awarded
under the CADA be excluded from the immunity provisions of the
CGIA. Cowen v. People, 2018 CO 96, ¶ 12 (“[C]ourts must presume
that a legislature says in a statute what it means and means in a
statute what it says there.” (quoting Conn. Nat’l Bank v. Germain,
503 U.S. 249, 253-54 (1992))); Massihzadeh v. Seaver, 2019 COA
92, ¶ 13 (“Questions of statutory interpretation necessitate, first
and foremost, consideration of the statutory text as a whole, giving
‘consistent, harmonious, and sensible effect to all of its parts and
avoiding constructions that would render any words or phrases
superfluous or lead to illogical or absurd results.’” (quoting
Pineda-Liberato v. People, 2017 CO 95, ¶ 22)).
¶ 27 We are not persuaded to the contrary by the Houchin
majority’s interpretation of the word “state” in subsection (8)(g).
Hogan v. Bd. of Cty. Comm’rs, 2018 COA 86, ¶ 37. Like the partial
dissent in Houchin, we interpret the word “state” broadly to include
14
all state entities able to seek immunity under the CGIA. Indeed, we
see no reason to “limit[] many public employees’ recourse to
compensatory damages [for unlawful discrimination claims] only
because they happen to be employed by one of Colorado’s
numerous political subdivisions, as opposed to the state itself[.]”
Houchin, ¶ 54 (Berger, J., concurring in part and dissenting in
part). When defining “employers” subject to the CADA in section
24-34-401(3), C.R.S. 2019, the General Assembly included the
“state of Colorado . . . and every other person employing persons
within the state.” If, as argued by the EPSO (and adopted by the
Houchin majority), the word “state” in subsection (8)(g) is limited to
state of Colorado employees, then the General Assembly would have
used the language “state of Colorado” to achieve this limitation.
Because it did not, and because we must construe all provisions of
the CADA harmoniously, we conclude that the General Assembly
intended “state” in subsection (8)(g) to include all state employers,
not just state of Colorado employers. See Jefferson Cty. Bd. of
Equalization v. Gerganoff, 241 P.3d 932, 935 (Colo. 2010) (“[O]ur
interpretation should give consistent, harmonious, and sensible
effect to all parts of a statute.”). Because we find the statutory
15
language sufficient to refute the conclusion reached by the Houchin
majority, we need not decide whether its interpretation violates
equal protection. Developmental Pathways v. Ritter, 178 P.3d 524,
535 (Colo. 2008) (noting that the principle of judicial restraint
requires courts to avoid reaching constitutional questions in
advance of the necessity of deciding them).
¶ 28 In sum, we conclude that front pay and compensatory
damages for a retaliation claim under the CADA are equitable
remedies not barred by the CGIA. We further conclude that Mr.
Williams is an “aggrieved party” under section 24-34-405(8)(a), that
EPSO is a state employer, and, thus, that subsection (8)(g) exempts
the compensatory damages remedy from the CGIA.
IV. Conclusion
¶ 29 We affirm the court’s order as it relates to the retaliation claim,
and the front pay portion of the court’s order for the age
discrimination claim. We reverse the compensatory damages
portion of the court’s order for age discrimination and conclude that
the CGIA bars it.
JUDGE PAWAR and JUDGE GRAHAM concur.
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