Brett L. Williams, Petitioner-Appellee and Cross-Appellant,
Department of Public Safety, Colorado State Patrol, Respondent-Appellant and Cross-Appellee, and State Personnel Board, Appellee
Personnel Board No. 2011G028.
Law Firm, LLC, Mary Donachy, Denver, Colorado; Scott Moss,
Denver, Colorado, for Plaintiff-Appellee and Cross-Appellant.
H. Coffman, Attorney General, Stacy L. Worthington, Senior
Assistant Attorney General, Denver, Colorado, for
Defendant-Appellant and Cross-Appellee.
H. Coffman, Attorney General, Eric H. Maxfield, First
Assistant Attorney General, Denver, Colorado, for Appellee.
by JUDGE WEBB. Fox, J., concurs. Berger, J., concurs in part
and dissents in part.
[¶1] Brett L. Williams spent twelve years as
a Colorado State Patrol (CSP) employee, climbing the ranks
from trooper to captain. In 2010, he resigned from CSP to
start a new career as a helicopter pilot. But when Williams
applied for reinstatement just three months later, his most
closely-guarded secret -- he is gay -- was revealed. After
Williams failed a polygraph examination and a swift
investigation concerning some of his responses, CSP refused
to reinstate him. But was that decision illegal
discrimination based on Williams' sexual orientation?
[¶2] Williams filed a complaint with the
State Personnel Board (Board). The complaint alleged that CSP
had acted arbitrarily or capriciously and that it had
discriminated against him on the basis of sexual orientation
in violation of the Colorado Anti-Discrimination Act (CADA),
sections 24-34-401 to -406, C.R.S. 2015. The Board referred
the complaint to an administrative law judge (ALJ) for
[¶3] After a five-day evidentiary hearing,
the ALJ issued an initial decision with detailed factual
findings that concluded that CSP's actions were
arbitrary, capricious, and constituted unlawful
discrimination based on sexual orientation. She awarded
Williams front pay in lieu of reinstatement, back pay,
attorney fees, and costs in amounts to be determined
following action by the Board.
[¶4] CSP appealed the initial decision to
the Board. It affirmed all of the ALJ's conclusions and
findings except for one: that CSP's culture was anti-gay.
The Board then remanded the case for the ALJ to determine
[¶5] After another evidentiary hearing, the
ALJ issued an amended order awarding Williams $172,742 in
back pay and $595,526 in front pay. Both parties appealed and
the Board affirmed. Then CSP appealed and Williams
cross-appealed to this court.
[¶6] Williams began his career with CSP in
1998 as a trooper. His performance evaluations were
consistently exceptional. He received several promotions over
the next twelve years, ultimately becoming a captain.
Throughout his tenure, Williams kept his sexual orientation
secret, even to the point of displaying a photograph of a
supposed girlfriend on his desk.
[¶7] But after an involuntary transfer to a
desk position that he did not " care for," Williams
resigned in 2010. Before leaving, according to Williams,
Major James Colley -- his then immediate supervisor --
assured him that if he returned to the force within a year,
the reapplication process would be streamlined such that
Williams would not have to undergo a polygraph examination
and a full background check.
[¶8] Three months later, Williams applied
for reinstatement. James Wolfinbarger, the new chief,
required Williams to complete a full background check and
take a polygraph examination. This requirement was a change
in policy from that of Wolfinbarger's predecessor.
[¶9] During the pre-polygraph interview,
Williams made two disclosures to examiner Sergeant Dean
Paxton that became significant.
[¶10] First, Williams described having once
inadvertently viewed child pornography on an adult
pornography website. When he realized that some of the actors
were children, he explained that he had clicked out of the
video and reported the video to the website administrator.
[¶11] Second, Williams revealed that a
massage in Thailand in 2006 " ended in sexual
contact." Paxton asked Williams whether the "
masseuse" was male or female; Williams responded male.
CSP's polygraph policies prohibited asking questions to
elicit an examinee's sexual orientation.
[¶12] Williams testified that revealing
information related to his sexual orientation during this
interview heightened his anxiety during the examination. When
Paxton asked whether Williams was concealing any unlawful
sexual conduct, and he responded " no," the
polygraph showed a " significant reaction," the
highest Paxton had ever seen. Based on this reaction, Paxton
concluded that Williams had failed the polygraph.
[¶13] Wolfinbarger soon learned about
Williams' admissions during the interview and failed
examination. He instructed Captain Dan Elder to find out
whether CSP could deny reinstatement based solely on the
polygraph results. Elder delegated this assignment to
Sergeant Tim Keeton. After doing some research, Keeton told
Elder that CSP could deny reinstatement based only on the
polygraph results, although he also knew that denying
reinstatement on this basis was not the best practice.
[¶14] Elder reported Keeton's conclusion
to Wolfinbarger. Lieutenant Colonel Scott Hernandez, in
consultation with Wolfinbarger, decided not to reinstate
Williams. Colley then told Williams that he would not be
reinstated. Due to an intervening holiday and a furlough day,
the process from examination to decision took about three
Arbitrary or Capricious Claim
[¶15] CSP first contends the Board did not
have authority to review Williams' claim that CSP acted
arbitrarily or capriciously in declining to reinstate him.
Alternatively, CSP contends the record lacks sufficient
evidence to support the ALJ's conclusion of an arbitrary
or capricious hiring decision. Because we agree with
CSP's first contention, its second contention is moot.
Preservation and Standard of Review
[¶16] The parties agree that this issue is
[¶17] Appellate courts review an
agency's determination of its own jurisdiction de novo.
Hawes v. Colo. Div. of Ins., 65 P.3d 1008, 1015
(Colo. 2003). Still, they generally defer to the agency's
reasonable interpretations of its own statutes. Gessler
v. Colo. Common Cause, 2014 CO 44, ¶ 7, 327 P.3d
232. Specifically, if the statute is silent or ambiguous,
" courts must consider whether the agency's
regulation is based on a permissible construction of the
statute." Xerox Corp. v. Bd. of Cty.
Comm'rs, 87 P.3d 189, 192 (Colo.App. 2003). But an
appellate court does not defer to an agency interpretation
that violates the plain language of the statute or the
General Assembly's intent. Youngs v. Indus. Claim
Appeals Office, 2012 COA 85M, ¶ 22, 297 P.3d 964.
Comparing Board and Director Authority
[¶18] The Board has authority to review
adverse actions involving state employees. See Colo.
Const. art. XII, § 13(8) (" [p]ersons in the
personnel system of the state" ). But its power to
review nonemployee appointment decisions arises from
a single statute: section 24-50-125.3, C.R.S. 2015 ("
[a]n applicant or employee" ). This section permits the
Board to review a " discriminatory or unfair employment
practice" as defined in CADA. Id. But it does
not empower the Board to consider a nonemployee's claim
of arbitrary or capricious action. See id.
[¶19] By contrast, the State Personnel
Director (Director) has express statutory authority to review
an appeal from " [a]ny person," which would include
nonemployees. § 24-50-112.5(4)(a), C.R.S. 2015. And
section 24-50-112.5(4)(b) grants the Director authority to
overturn any action found to have been " arbitrary,
capricious, or contrary to rule or law."
[¶20] True enough, the Board has statutory
authority to reverse or modify a determination by the
Director should the Board conclude that either the action of
the Director or that of the appointing authority whose action
the Director reviewed was arbitrary or capricious. §
24-50-103(6), C.R.S. 2015. But the claim must be "
appealable to the [B]oard pursuant to this article or the
state constitution" for the Board to review it under
section 24-50-103(6). Id.
[¶21] A close look at the statutory
framework shows the possibility of two separate but parallel
appeals -- one directly to the Board from an allegedly
discriminatory action by an appointing authority and one to
the Director from an allegedly arbitrary or capricious action
by an appointing authority. See Ch. 351, sec. 15,
§ 24-50-112.5(4)(c) & (d), 2010 Colo. Sess. Laws 1626-27
(explaining that if any employee who has filed an appeal with
the Director also files an appeal with the Board arising from
the same action by an appointing authority, then the
ninety-day period within which the Director must issue a
written decision will be tolled until the Board's final
decision, if both appeals arise from the same action). Thus,
" all complaints about the selection . . . process
not involving allegations of discrimination are to
be filed with the director, while any claims of
discrimination with respect to that process must be filed
with the board or the civil rights division."
Cunningham v. Dep't of Highways, 823 P.2d 1377,
1380 (Colo.App. 1991).
Statutory Construction Principles
[¶22] Appellate courts first look to the
General Assembly's chosen language to discern the
legislative intent. See Steedle v. Sereff,
167 P.3d 135, 140 (Colo. 2007). The court must " give
effect to the General Assembly's choice of wording."
Colo. Dep't of Pers. v. Alexander, 970 P.2d 459,
465 (Colo. 1998). When the language is plain, the court must
apply the text as written and not force or strain its
interpretation. Welby Gardens Co. v. Adams Cty. Bd. of
Equalization, 56 P.3d 1121, 1123 (Colo.App. 2002),
aff'd, 71 P.3d 992 (Colo. 2003).
The ALJ's Determination
[¶23] The ALJ concluded that she had
authority to review Williams' claim that CSP had acted
arbitrarily or capriciously.
[¶24] In the initial order, she first
explained that section 24-50-125.3 -- permitting a
nonemployee, like Williams, to appeal a discriminatory action
to the Board -- does not " place a limit on the
Board's commensurate jurisdiction under §
24-50-103(6)." Thus, according to the ALJ, when the
Board reviews allegedly discriminatory actions under section
24-50-125.3, " there is a rebuttable presumption that
the Board may [also] reverse or modify the action if it finds
it to have [also] been arbitrary [or] capricious[.]"
Next, the ALJ interpreted the tolling provisions to permit
applicants to select their appellate forum. Finally, the ALJ
concluded that requiring a nonemployee to pursue two separate
appeals -- an arbitrary or capricious claim to the Director
and a discrimination claim to the Board -- produced an "
untenable result" in terms of judicial economy.
[¶25] The Board affirmed the ALJ's
conclusion without additional analysis.
[¶26] Although the Board lacks express
authority to review a nonemployee's claim that the
appointing authority was arbitrary or capricious, it argues
that reading the plain language of several provisions
together at least implies this power. The applicable language
of section 24-50-103(6) -- permitting the Board to reverse
arbitrary or capricious actions if the claim was "
appealable to the board" -- and section 24-50-125.3 --
permitting the Board to review nonemployee discrimination
claims -- stems from the same bill. See Ch. 194,
sec. 2, § 24-50-103(6), 1984 Colo. Sess. Laws 705
(amending section 24-50-103(6)); Ch. 194, sec. 11, §
24-50-125.3, 1984 Colo. Sess. Laws 712-13 (adding section
24-50-125.3). For this reason, the Board asserts that we
should construe these provisions together. See
Buck v. Dist. Court, 199 Colo. 344, 347-48, 608 P.2d
350, 352 (1980) (two statutes, enacted contemporaneously,
should be construed together).
[¶27] The result, according to the Board, is
that because it may review appeals by nonemployees under
section 24-50-125.3, those claims are " appealable to
the board" as required by section 24-50-103(6), and thus
they can be reviewed under the " arbitrary [or]
capricious" language in the latter section. The Board
also points out that when the General Assembly enacted
section 24-50-125.3, it did not limit the Board's
jurisdiction in section 24-50-103(6).
[¶28] But this analysis ignores the
difference in the scope of the Board's review between
section 24-50-125.3 and section 24-50-103(6). On the one
hand, section 24-50-125.3 empowers the Board to review
appeals -- including those by nonemployees -- for allegedly
discriminatory action. Thus, only discrimination claims are
" appealable to the board" under section
24-50-103(6). On the other hand, section 24-50-103(6)
empowers the Board to review such appealable claims for, as
relevant here, action that is " arbitrary [or]
capricious." But the Board does not explain, nor can we
discern, how section 24-50-103(6) could expand its review for
discriminatory action into a review for arbitrary or
[¶29] Although section 24-34-301, C.R.S.
2015, does not define discrimination, the term has a
well-understood meaning in the employment context. See,
e.g., Newport News Shipbuilding & Dry Dock Co. v.
EEOC, 462 U.S. 669, 682 n.22, 103 S.Ct. 2622, 77 L.Ed.2d
89 (1983) (discrimination means " less favorable"
treatment on a statutorily prohibited basis). In contrast, an
administrative agency has acted arbitrarily or capriciously
where " no substantial evidence exists in the record to
support the agency's decision." Gessler v.
Grossman, 2015 COA 62, ¶ 39.
[¶30] The Board's interpretation would
conflate these fundamentally different inquiries. This
interpretation would leave one to wonder whether the Board
could uphold an appointing authority's action for
insufficient evidence of less favorable treatment, but then
overturn the action because the evidence showed that the
appointing authority had acted arbitrarily or capriciously.
[¶31] No provision precludes Board review of
a nonemployee's claim that the appointing authority acted
arbitrarily or capriciously. But section
24-50-112.5(4)(a)-(b) grants the Director express authority
to do just that. And " when the [General Assembly]
includes a provision in one statute, but omits that provision
from another similar statute, the omission is evidence of its
intent." Deutsch v. Kalcevic, 140 P.3d 340, 342
(Colo.App. 2006). Thus, we should not infer that the General
Assembly intended to implicitly provide the Board with the
same authority that it expressly provided to the Director.
[¶32] To be sure, where an appointing
authority's action is challenged on multiple grounds, the
Board and the Director may have overlapping appellate
authority in some respects. See §
24-50-112.5(4)(c)-(d) (describing appellate process if
complainant files appeals with both the Director and the
Board). But the General Assembly did not merge the
Director's authority into that of the Board. To do so --
as the Board urges -- would add words to these statutes. This
an appellate court cannot do. See Bedee v. Am.
Med. Response of Colo., 2015 COA 128, ¶ 39, 361
[¶32] As well, interpreting the statutory
framework as the ALJ did -- permitting aggrieved nonemployees
to select their forum for claims alleging arbitrary or
capricious action -- impermissibly stretches the text in
another way. Sections 24-50-112.5(4)(c) and (d) -- tolling
the time in which the Director must issue a decision until
the Board has reached a final decision -- assume that even if
the aggrieved applicant appealed to the Board, the Director
could still have a question to resolve. And as relevant here,
that question could be the merits of a nonemployee's
claim the appointing authority was arbitrary or capricious,
because the Director has express authority to consider such a
claim. See § 24-50-112.5(4)(b).
[¶34] As for judicial economy, policy
considerations are subordinate to giving effect to
unambiguous statutory language. See Swieckowski
by Swieckowski v. City of Ft. Collins, 934 P.2d 1380,
1387 (Colo. 1997) (" [W]e are constrained by limiting
principles of judicial review to interpret statutory language
consistently with the intent of the General Assembly and with
the plain meaning of the words chosen by this body when it
enacts a statute. We may not substitute our view of public
policy for that of the General Assembly." ); People
in the Interest of D.R.W., 91 P.3d 453, 458 (Colo.App.
2004) (" We reject policy considerations in favor of the
plain language of the statute." ). And by tolling the
Director's deadline until " final agency
action" by the Board, the statute recognizes that a
redundant decision by the Director might be avoidable if both
appeals arose from the same appointing authority's
[¶35] Undaunted, the Board points out that
section 24-50-112.5(4)(e) permits " any person" to
file an appeal to the Board after the Director's
final decision. The Board argues that this section negates
the Director's exclusive authority over claims alleging
arbitrariness or capriciousness when discrimination is also
alleged. But this section became effective after the ALJ had
determined that she had authority to review Williams'
claim CSP acted arbitrarily or capriciously. Ch. 260, sec. 9,
§ 24-50-112.5(4)(e), 2012 Colo. Sess. Laws 1350
(effective January 1, 2013). Thus, it does not illuminate
interpretation of the statutes that existed during
Williams' administrative proceedings. See
Boulder Med. Ctr. v. Moore, 651 P.2d 464, 466
(Colo.App. 1982) (" [B]ecause this statute was not in
effect at the time of Moore's termination and at the time
of trial, and because retrospective application is forbidden
in the absence of plain language, this section does not apply
[¶36] Recall that when a statute " is
silent or ambiguous with respect to a specific issue, courts
must consider whether the agency's regulation is based on
a permissible construction of the statute." Xerox
Corp., 87 P.3d at 192. An ambiguous statute is one
" fairly susceptible of more than one
interpretation." Miller v. Indus. Claim Appeals
Office, 985 P.2d 94, 96 (Colo.App. 1999).
[¶37] In contrast, here the statutory scheme
unambiguously grants the Director authority over claims of an
arbitrary or capricious action. It does not grant that same
authority to the Board. As well, the statutes are not silent
on the Board's authority to review nonemployee claims:
the Board may review such claims alleging discrimination or
other unfair employment practices " as defined in part 4
of article 34." § 24-50-125.3.
[¶38] Finally, the Board's rules do not
grant it authority to consider claims alleging arbitrary or
capricious action. Rule 8-42 says that claims with no
allegations of discrimination shall be filed with the
Director. Dep't of Pers. & Admin. Rule 8-42, 4 Code
Colo.Regs. § 801-1 (2011). But the then-applicable Rule
8-46(A) gave the Board discretion to grant a hearing in
claims alleging discrimination " where there is no
mandatory right to a hearing, including discrimination in the
selection and examination process[.]" Dep't of Pers.
& Admin. Rule 8-46(A), 4 Code Colo.Regs. § 801-1 (2011).
[¶39] Given all this, we conclude that the
Board lacked authority to review Williams' claim CSP
acted arbitrarily or capriciously.
[¶40] Section 24-50-112.5(4)(a) grants an
aggrieved applicant ten days to appeal an appointing
authority's decision to the Director. But the Board
points out -- and CSP does not dispute -- that this time
" does not run if the notice did not properly advise the
employee of his or her right to appeal." Renteria v.
Colo. State Dep't of Pers., 811 P.2d 797, 802 (Colo.
1991); see also Cunningham, 823 P.2d at
[¶41] CSP's letter notifying Williams
that he would not be reinstated failed to explain
Williams' right to appeal to the Director. Thus, we
remand Williams' claim CSP acted arbitrarily or
capriciously to the Board for referral to the Director, who
may consider whether the claim has been tolled by lack of
notice. If the Director so concludes, then the Director may
consider the merits of the claim. However, because the Board
set aside the refusal to reinstate as discriminatory and we
are upholding its decision, the Director may instead conclude
that Williams' claim that CSP acted arbitrarily or
capriciously has become moot.
[¶42] CSP next contends the record lacks
sufficient evidence to support the ALJ's conclusion that
CSP discriminated against Williams based on his sexual
orientation. We discern ample record support to affirm the
Preservation and Standard of Review
[¶43] Williams agrees that CSP preserved
[¶44] A reviewing court will not reverse an
administrative agency's decision " unless the agency
acted in an arbitrary and capricious manner, made a
determination that is unsupported by the evidence and the
record, erroneously interpreted the law, or exceeded its
constitutional or statutory authority." Colo.
Citizens for Ethics in Gov't v. Comm. for the Am.
Dream, 187 P.3d 1207, 1214 (Colo.App. 2008).
[¶45] Under CADA, a prima facie
discrimination case requires proof that (1) the employee
belongs to a protected class; (2) the employee was qualified;
(3) despite being qualified, the employee suffered adverse
employment action; and (4) the circumstances give rise to an
inference of discrimination based on membership in the
protected class. St. Croix v. Univ. of Colo. Health Scis.
Ctr., 166 P.3d 230, 236 (Colo.App. 2007); see
also Colo. Civil Rights Comm'n v. Big O Tires,
Inc., 940 P.2d 397, 400 (Colo. 1997).
[¶46] If the employee establishes a prima
facie case, the burden shifts to the employer to "
articulate some legitimate, nondiscriminatory reason for the
employment decision." St. Croix, 166 P.3d at
236; see alsoMcDonnell Douglas Corp. v.
Green, 411 U.S. 792, 802-03, 93 S.Ct. 1817, 36 L.Ed.2d
668 (1973) (describing burden shifting analysis under Title
VII). Then if the employer provides a
legitimate, nondiscriminatory reason for its actions, the
employee must show that the ...