Paso County District Court No. 18CV30745 Honorable Erin
Livelihood Law, LLC, Euell Thomas, Rachel E. Ellis, Denver,
Colorado, for Plaintiff-Appellee
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
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.
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 ...