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City and County of Denver v. Gutierrez

Court of Appeals of Colorado, First Division

May 19, 2016

City and County of Denver, Plaintiff-Appellee,
v.
Silver Gutierrez, Defendant-Appellant.

         City and County of Denver District Court No. 13CV3289 Honorable Kenneth M. Laff, Judge

          Announced May 19, 2016 D. Scott Martinez, City Attorney, Franklin A. Nachman, Assistant City Attorney, Denver, Colorado, for Plaintiff-Appellee

          Elkus Sisson & Rosenstein, P.C., Reid J. Elkus, Ryan J. Coward, Denver Colorado, for Defendant-Appellant

          OPINION

          HARRIS JUDGE

         ¶ 1 Silver Gutierrez was suspended from the Denver Sheriff's Department (DSD) for violating the DSD's personnel rules, including its sexual harassment policy. After an appeal to the Career Services Board (Board), Mr. Gutierrez's suspension was reduced, and the City and County of Denver, on behalf of the DSD, appealed the Board's decision to the district court. The district court concluded that the Board had misconstrued several of the applicable rules, reversed the Board's decision in part, and remanded to the Board.

         ¶ 2 On appeal, Mr. Gutierrez argues that the district court improperly evaluated his conduct using an objective standard, rather than assessing it based on his subjective intent in light of the informal and somewhat freewheeling culture that defined a subgroup of officers at the DSD. But we agree with the district court that the plain language of the rules at issue does not permit any such subjective considerations.

         ¶ 3 Accordingly, we affirm that part of the district court's order finding that the hearing officer and the Board applied the incorrect legal standard to evaluate Mr. Gutierrez's conduct. However, we disagree with the district court that Mr. Gutierrez violated the DSD rule that prohibits a request for sexual favors. We remand to the district court with instructions to remand to the Board for reconsideration of the appropriate disciplinary action in light of this opinion.

         I. Background

         ¶ 4 Mr. Gutierrez is a captain with the DSD. Cheryl Arabalo was also a captain with the DSD at the time of the incident at issue but has since been terminated for unrelated reasons. Both Mr. Gutierrez and Ms. Arabalo were on the board of the Denver Sheriff's Foundation (Foundation), an independent nonprofit organization.

         ¶ 5 The hearing officer's historical findings of fact are undisputed. On August 26, 2010, Mr. Gutierrez was serving as Acting Division Chief for the receiving unit of the Denver County Jail in the absence of two of his superiors. Ms. Arabalo was off-duty but came to Mr. Gutierrez's office to pick up checks for the Foundation. When Ms. Arabalo walked in, Mr. Gutierrez was on the phone. He gestured to her to lift up her shirt and expose her breasts. He then gestured for her to sit on his lap. Two months later, Ms. Arabalo filed a complaint with the Colorado Civil Rights Division, alleging that a coworker had sexually harassed her on August 26, which prompted an investigation by the DSD's Internal Affairs Bureau.

         ¶ 6 According to the hearing officer's findings, this type of behavior was not uncommon among Foundation board members. The Foundation board members socialized both at work and off-duty. When board members would call one another, they would often answer the phone by asking, "What are you wearing?" The hearing officer determined this was a kind of "tag line" for the group, and that Mr. Gutierrez and Ms. Arabalo would sometimes answer each other's calls in this manner. Further, the hearing officer found that the group had a "locker room culture, " in which the board members frequently engaged in "sexual banter, " and that Mr. Gutierrez and Ms. Arabalo were "integral parts of that culture."

         ¶ 7 The DSD held a pre-disciplinary meeting in September 2011, after which it suspended Mr. Gutierrez for seventy-five days for violations of several Career Service Rules and Departmental Orders (DO). Mr. Gutierrez appealed the suspension to the Board. After a hearing, the hearing officer determined that the DSD did not prove the most egregious violations alleged against Mr. Gutierrez and reduced his suspension to thirty days. The hearing officer found that while Mr. Gutierrez's conduct violated some rules and orders charged by the DSD, it did not violate DO 200.15 (displaying disrespectful language or behavior toward an employee), 300.10 (engaging in immoral, indecent, or disorderly conduct), or 2420.1B, the DSD's sexual harassment policy. Both parties appealed the decision to the full Board, which affirmed the hearing officer's decision.

         ¶ 8 The City appealed the Board's decision to the district court pursuant to C.R.C.P. 106(a)(4). The district court determined that the Board had abused its discretion by finding that Mr. Gutierrez had not violated DO 200.15, 300.10, and 2420.1B. The district court remanded the case to the Board ...


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