Berumen v. Dep't of Human Servs.

• Decision Date: 26 April 2012
• Docket Number: No. 11CA0640.,11CA0640.
• Parties: Maria BERUMEN and Dawn Adams, Complainants–Appellees and Cross–Appellants, v. DEPARTMENT OF HUMAN SERVICES, WHEAT RIDGE REGIONAL CENTER, Respondent–Appellant and Cross–Appellee, and State Personnel Board, Appellee.
• Court: Colorado Court of Appeals

304 P.3d 601

Maria BERUMEN and Dawn Adams, Complainants–Appellees and Cross–Appellants,

v. DEPARTMENT OF HUMAN SERVICES, WHEAT RIDGE REGIONAL CENTER, Respondent–Appellant and Cross–Appellee,andState Personnel Board, Appellee.

No. 11CA0640.

Colorado Court of Appeals, Div. III.

April 26, 2012.

Mark Schwane, Denver, Colorado, for Complainants–Appellees and Cross–Appellants.

John W. Suthers, Attorney General, Vincent E. Morscher, First Assistant Attorney General, Denver, Colorado, for Respondent–Appellant and Cross–Appellee.

John W. Suthers, Attorney General, Catherine Shea, Assistant Solicitor General, Judy L. Labuda, Assistant Attorney General, Denver, Colorado, for Appellee.

Opinion by Judge GABRIEL.

¶ 1 The Department of Human Services, Wheat Ridge Regional Center (WRRC) appeals the State Personnel Board's (the Board's) award of back pay and benefits to complainants, Maria Berumen and Dawn Adams, employees whom WRRC discharged. Complainants cross-appeal the Board's determinations upholding their terminations and denying their request for attorney fees.

¶ 2 Regarding the appeal, we conclude that the Board's determination that a public employer must provide a certified public employee with advance notice of all of the rights that he or she has at a pre-disciplinary meeting was contrary to the plain language of the applicable Board rule and was not required by due process. We further conclude that complainants' due process rights were not violated. Accordingly, we hold that the Board erred in concluding that complainants received inadequate notice of their pre-disciplinary meetings and thus reverse its award of back pay and benefits.

¶ 3 Regarding the cross-appeal, we conclude that the record amply supported the administrative law judge's (ALJ's) findings that (1) complainants received an adequate opportunity to be heard prior to their terminations, (2) certain hearsay evidence was admissible against them, and (3) they were not entitled to an award of attorney fees. Accordingly, we hold that the Board correctly affirmed those findings.

I. Background

¶ 4 WRRC operated a house for developmentally disabled residents, including Client 1. Berumen was a certified Health Care Technician I, and Adams was a certified Client Care Aide II for those residents.

¶ 5 The evidence produced before the ALJ demonstrated that on December 6, 2009, complainants placed Client 1 in an unauthorized hold, causing him to suffer a rug abrasion on his face, and then failed to report this incident, in violation of applicable WRRC procedures. Another staff member, however, reported the incident after seeing Client 1's injuries and learning what had happened from Client 2, a resident who had witnessed the episode. Complainants were then placed on paid administrative leave, pending an investigation.

¶ 6 Over the next few days, an investigator for WRRC and several police officers interviewed Client 1 and Client 2, who provided similar descriptions of the incident (although Client 1 refused to cooperate during one interview). The investigator and officers also interviewed complainants, who denied that they had employed any type of hold on Client 1. Sometime later, however, Berumen changed her story, telling WRRC's investigator that Adams had, in fact, used a hold on Client 1. Berumen also provided a handwritten statement describing the incident in detail, including the physical contact between and among her, Adams, and Client 1.

¶ 7 Subsequently, WRRC's investigator completed and forwarded her report to WRRC's management committee and to complainants' appointing authority. The appointing authority decided to notice both complainants for pre-disciplinary meetings, pursuant to Colorado State Personnel Board Rule 6–10, 4 Code Colo. Regs. 801 (Rule 6–10), and he and his supervisor drafted such notices for complainants.

¶ 8 For reasons not clear from the record, neither Berumen nor Adams received these notices. In late December 2009, however, the appointing authority called both complainants and informed them of the date, time, and place scheduled for their pre-disciplinary meetings. The appointing authority did not advise complainants in these calls of their right to have a representative at the meetings.

¶ 9 On January 5, 2010, the appointing authority, together with his supervisor, met first with Berumen and then with Adams. At the beginning of each meeting, the appointing authority or his supervisor read to complainants the first paragraph of Rule 6–10, which included their right to have a representative present. Complainants then both confirmed that they knew why they were meeting. In addition, Berumen did not request a representative, and although Adams said she did not know anything about “the representation,” she said, “I don't have a lot to hide, so it doesn't really matter.” Each complainant then participated in the meetings and described the event at issue.

¶ 10 Complainants' descriptions of the incident differed from one another, and differed from versions that they had previously provided. Berumen now said that although Adams was on the floor with Client 1, she did not place him in a hold, which would have caused his behavior to escalate, but simply tried to make sure that he did not hurt himself. Adams maintained that she had not put Client 1 in a hold, but she now said that she may have sat down beside and played a game with him as a means of redirecting him.

¶ 11 Within days of these meetings, the appointing authority sent letters to complainants advising them of the decision to terminate their employment, based on substantiated physical abuse of a resident, willful violation of agency policies and procedures, and, in Adams' case, failure to adhere to past corrective action. Thereafter, pursuant to section 24–50–125(3), C.R.S.2011, complainants petitioned for a hearing on their terminations, and a hearing was subsequently conducted before the ALJ.

¶ 12 At the hearing, WRRC presented testimony from numerous witnesses, including the staff member who had reported the hold, WRRC's investigator, the appointing authority, and his supervisor, all of whom supported WRRC's position that the incident involving the hold had occurred and that complainants had failed to comply with applicable procedures.Among other things, one staff member testified that on December 6, 2009, Adams had told him that she and Berumen had to put Client 1 in a hold earlier that day. WRRC did not call Client 1 or Client 2, however, because, according to its evidence, their developmental disabilities and their resulting inability to handle the evidentiary hearing environment rendered them unavailable to testify. Over complainants' hearsay objections, WRRC presented the clients' out-of-court statements through the testimony of other witnesses.

¶ 13 Complainants both responded that they did not place Client 1 in any type of hold. (Berumen explained her above-described written statement to the contrary by testifying that WRRC's investigator had told her what to write and that she did so because she feared losing her job if she did not comply.) In addition, complainants argued that (1) WRRC had failed to comply with Rule 6–10's notice requirements, and (2) the appointing authority's supervisor, not the appointing authority himself, made the decision to discharge complainants, which was improper.

¶ 14 After the hearing, the ALJ issued a lengthy, detailed, and thorough order denying all of complainants' requests for relief. The ALJ expressly found that, because, among other things, complainants' descriptions of the events at issue had changed several times, complainants were not credible. The ALJ also concluded that complainants had received adequate notice of their pre-disciplinary meetings, and she rejected their contention that the decision to terminate them was made by the appointing authority's supervisor, and not by the appointing authority, as required.

¶ 15 Complainants then appealed the ALJ's ruling to the Board. The Board ultimately adopted all of the ALJ's findings of fact and conclusions of law, except for her conclusion that WRRC gave complainants adequate notice of the pre-disciplinary meeting. On that issue, the Board held:

[WRRC's] verbal notice of the pre-disciplinary meeting under Board Rule 6–10 which did not include complete notification of the Complainants' rights with regards to that meeting, including but not limited to the right to have a representative present at the meeting, was arbitrary, capricious and contrary to the rule.

The Board thus awarded complainants back pay and benefits from their respective dates of termination up to the first day of the hearing. The Board denied their remaining requests for relief.

¶ 16 The parties now appeal.

II. Standard of Review

¶ 17 When an appellate court reviews the decision of an administrative agency like the Board,

[it] may reverse [the] administrative agency if it finds that the agency acted arbitrarily or capriciously, made a decision that is unsupported by the record, erroneously interpreted the law, or exceeded its authority. Where the challenge is to the Board's resolution of an ultimate conclusion of fact, a reviewing court must determine whether the record contains sufficient evidence showing a reasonable basis in law for the Board's conclusion. If the reviewing court finds that sufficient evidence supports the Board's conclusion, then the Board's action is not an abuse of discretion, and the court may not reverse it. In reviewing the Board's decision, courts should give deference to the Board because it is a constitutionally created state agency with considerable expertise in personnel matters, and courts should resolve all reasonable doubts as to the correctness of the Board's decision in the Board's favor.

Colorado Dep't of Human Services v. Maggard, 248 P.3d 708, 712–13 (Colo.2011) (citations omitted).

III. Notice of the Pre–Disciplinary Meeting

¶ 18 WRRC contends that the Board...