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