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Department of Human Services v. State Personnel Board

Court of Appeals of Colorado, First Division

March 10, 2016

Department of Human Services, Colorado Mental Health Institute at Pueblo, Petitioner-Appellant,
v.
State Personnel Board and Joanne Brown, Respondents-Appellees

          State Personnel Board Case No. 2012B 128.

         Cynthia H. Coffman, Attorney General, Heather J. Smith, Assistant Attorney General, Denver, Colorado, for Petitioner.

         State Personnel Board, Pro se.

         Schwane Law, LLC, Mark A. Schwane, Denver, Colorado, for Respondent Joanne Brown.

          OPINION

         FOX, JUDGE.

          [¶1] Petitioner-appellant Department of Human Services, Colorado Mental Health Institute at Pueblo (DHS), appeals from two State Personnel Board (Board) orders, which collectively affirmed the findings of fact of the Administrative Law Judge (ALJ) but reversed two conclusions of law. DHS challenges the Board's conclusions that (1) DHS's decision to administratively separate respondent-appellee Joanne Brown from her employment was arbitrary, capricious, or contrary to law; and (2) Brown's Public Employees' Retirement Association (PERA) benefits should not be offset from her back pay award. We reject both challenges and affirm.

         I. Background

          [¶2] Since 2010, Brown has served as an admissions psychiatric liaison on the graveyard shift at the Colorado Mental Health Institute at Pueblo (CMHIP). CMHIP is a state psychiatric hospital that serves mentally ill patients, including adolescents and adults.

          [¶3] According to the position description questionnaire (PDQ) for Brown's position, the admissions work unit " exists to process all inpatient, outpatient, clinic, dental, and medical surgical admissions into CMHIP." Admissions liaisons are the first line of contact with patients; they screen incoming referrals to determine if admissions criteria are met, assess patient placement in the hospital, and ensure that all legal, medical, and mental health forms are completed. They also record, code, and report patient data, as well as provide feedback about the admissions process to other CMHIP staff. Brown's PDQ dedicated ninety percent of her time to these tasks.

          [¶4] In addition, Brown's PDQ dedicated ten percent of her time to providing " clinical direct patient intervention, i.e. admission interview, behavioral management of a patient supported by CTI [continuum of therapeutic intervention], Verbal Judo, CPR [cardiopulmonary resuscitation], and other mandatory training as identified by [CMHIP's] Administration." CTI is a method for responding to situations where a patient's behavior has escalated, verbal interventions have failed, the behavior of the patient presents an imminent threat to himself or others, and the patient needs to be contained or restrained physically. Although Brown was required to undergo mandatory CTI and CPR training, she has not had to use CTI or CPR during her tenure as an admissions liaison.

          [¶5] In June 2011, Brown began to experience health problems related to a prior work-related injury sustained at CMHIP that caused damage to her neck and lower back.[1] Her treating physician assigned Brown work restrictions, which included not participating in the physical intervention techniques of CTI and CPR. As a result, Brown's supervisors placed her on modified duty -- a temporary reassignment of job tasks -- which consisted of not being required to use, or be trained to use, CTI and CPR. In January 2012, Brown's treating physician assigned her the additional work restrictions of no lifting, carrying, pushing, or pulling more than ten pounds and no bending, twisting, or turning.

          [¶6] Brown's modified duty ended on February 29, 2012, and, after exhausting the leave allowed under the Family Medical Leave Act, Brown applied for short-term disability benefits. She was denied. Brown then submitted to DHS a request for a reasonable accommodation under the Americans with Disabilities Act (ADA). As pertinent here, Brown sought an exemption from CMHIP's requirement that she be prepared to use, and train in, CTI and CPR. After discussing the request with Brown's supervisors, DHS's ADA coordinator informed Brown that meeting her request was not possible because CTI and CPR were essential functions of her position and no reasonable accommodation could be found.

          [¶7] In June 2012, DHS informed Brown that she had exhausted all available paid and unpaid leave and was therefore administratively discharged from her employment.

          [¶8] Brown timely sought review of her administrative separation, and the parties proceeded to a two-day evidentiary hearing before an ALJ. Brown asserted that DHS discharged her in violation of the Colorado Anti-Discrimination Act (CADA) and ADA prohibitions against disability discrimination. The ALJ's initial decision affirmed DHS's decision to administratively separate Brown from her position, concluding that it was not arbitrary, capricious, or contrary to rule or law. The ALJ heavily relied on DHS's conclusory statements that CTI and CPR were essential functions of Brown's position and concluded that Brown had " not met her burden of proving" otherwise.

          [¶9] Brown timely appealed the ALJ's initial decision to the Board. The Board adopted the ALJ's findings of fact, but reversed the legal conclusion that DHS's action was not arbitrary, capricious, or contrary to rule or law. The Board instead concluded, in part, that CTI and CPR were not essential functions of Brown's position and ordered that Brown be reinstated to her position and awarded back pay and benefits. The Board then remanded the case to the ALJ to determine the amount of back pay and benefits to be awarded.

          [¶10] On remand, after an evidentiary hearing, the ALJ awarded Brown back pay and benefits from the date of her separation to the date of the Board's reversal. The ALJ also concluded that Brown's " PERA disability retirement and unemployment benefits, in addition to her income, must be offset from back pay and benefits." [2]

          [¶11] Brown and DHS appealed the ALJ's order on remand to the Board. After briefing, the Board issued a final agency order adopting the ALJ's findings of fact and the ALJ's conclusion regarding the dates of Brown's entitlement to back pay and benefits. The Board, however, reversed the ALJ's second legal conclusion to the extent that it required an offset to the award for Brown's PERA disability retirement benefits. The Board concluded that " PERA disability benefits are collateral benefits and cannot count as an offset against [Brown's] recovery."

         II. Standard of Review

          [¶12] We will reverse the decision of a board of an administrative agency only if we find that the board acted arbitrarily or capriciously, made a decision that is unsupported by the record, erroneously interpreted the law, or exceeded its authority. § 24-4-106(7), C.R.S. 2015; Lawley v. Dep't of Higher Educ., 36 P.3d 1239, 1247 (Colo. 2001); McClellan v. Meyer, 900 P.2d 24, 29 (Colo. 1995).

          [¶13] We must uphold an agency's final decision if a consideration of the record as a whole reveals that the decision is supported by substantial evidence. Lee v. State Bd. of Dental Exam'rs, 654 P.2d 839, 843 (Colo. 1982); Partridge v. State, 895 P.2d 1183, 1188 (Colo.App. 1995).

          [¶14] Moreover, " [a]ll reasonable doubts as to the correctness of the administrative body's ruling must be resolved in its favor, and the administrative determination will not be disturbed absent an abuse of discretion." Ward v. Dep't of Nat. Res., 216 P.3d 84, 91 (Colo.App. 2008) (citing Lawley, 36 P.3d at 1252). " Findings of fact must be accepted on review, unless they are so clearly erroneous as not to find support in the record." Ward, 216 P.3d at 93.

         III. The Administrative Separation

          [¶15] DHS first contends that the Board erred in reversing the ALJ's legal conclusion that DHS's employment decision " was not arbitrary, capricious or contrary to rule or law." DHS argues that the Board's reversal is unsupported by the evidence and lacks a reasonable basis in law because Brown could not perform the essential functions of her position. We discern no error.

         A. Legal Principles

          [¶16] The ADA provides that no covered employer " shall discriminate against a qualified individual on the basis of disability in regard to job application procedures, the hiring, advancement, or discharge of employees, employee compensation, job training, and other terms, conditions, and privileges of employment." 42 U.S.C. § 12112(a) (2012); see also § 24-34-402(1), C.R.S. 2015.[3]

          [¶17] To succeed on an ADA claim, a plaintiff must show: (1) she is disabled, as defined by the ADA; (2) she is a " qualified" individual who, with or without reasonable accommodation, can perform the essential functions of the employment position that such individual holds or desires; and (3) she suffered discrimination on the basis of her disability. Hennagir v. Utah Dep't of Corr., 587 F.3d 1255, 1261 (10th Cir. 2009); see 42 U.S.C. § 12111(8) (2012); 29 C.F.R. § 1630.2(m) (2015) (defining " qualified individual" ); see also § 24-34-402(1)(a) (" [W]ith regard to a disability, it is not a discriminatory . . . practice for an employer to act as provided in this paragraph (a) if there is no reasonable accommodation that the employer can make with regard to the disability, the disability actually disqualifies the person from the job, and the disability has a significant impact on the job." ); Cmty. Hosp. v. Fail, 969 P.2d 667, 672 (Colo. 1998) (refining the " qualified individual" prong to account for instances, unlike here, where a disabled individual cannot meet the essential functions of the job and requests a transfer to a vacant position as a reasonable accommodation).

          [¶18] DHS does not dispute that Brown is disabled under the ADA or that Brown was administratively discharged because of the work limitations caused by her disability. Accordingly, we need only address the second prong -- whether Brown is a " qualified individual" who could perform the ...


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