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Williams v. Elder

Court of Appeals of Colorado, First Division

November 14, 2019

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.

          El Paso County District Court No. 18CV30745 Honorable Erin Sokol, Judge

          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

          OPINION

          FREYRE, JUDGE

         ¶ 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 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, 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 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 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 ...


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