City of Colorado Springs v. Industrial Com'n of State of Colo., 86SC34

• Decision Date: 25 January 1988
• Docket Number: No. 86SC34,86SC34
• Citation: 749 P.2d 412
• Parties: CITY OF COLORADO SPRINGS, Petitioner, v. The INDUSTRIAL COMMISSION OF the STATE OF COLORADO and Fernando E. Santos, Respondents.
• Court: Colorado Supreme Court

Page 412

749 P.2d 412

CITY OF COLORADO SPRINGS, Petitioner, v. The INDUSTRIAL COMMISSION OF the STATE OF COLORADO and Fernando E. Santos, Respondents.

No. 86SC34.

Supreme Court of Colorado En Banc.

Jan. 25, 1988.

James G. Colvin II, City Atty., Jackson L. Smith, Asst. City Atty., Michael J Heydt, Chief Litigation Atty., Michele Sebastian Price, Corporate Atty., Colorado Springs, for petitioner.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Dani R. Newsum, Asst. Atty. Gen., Denver, for respondent Indus. Com'n of Colorado.

Law Offices of McKendree & Toll, Donald J. Mares, Denver, for respondent Fernando E. Santos.

Gerald E. Dahl, Denver, for amicus curiae Colorado Mun. League.

KIRSHBAUM, Justice.

In City of Colorado Springs v. Industrial Commission, 720 P.2d 601 (Colo.App.1985), the Court of Appeals affirmed an order of the Industrial Commission (the Commission) awarding unemployment compensation benefits to Fernando E. Santos (Santos), the respondent. The City of Colorado Springs (the City) had previously discharged Santos from employment for unsatisfactory performance and conduct unbecoming a City employee. We granted certiorari to review the conclusion of the Court of Appeals that the City's action did not bar the Commission's determination that Santos was entitled to full unemployment compensation benefits, and now affirm.

I

From September 1972 until April 1984, Santos was employed as an administrative clerk in the City Clerk and Treasurer's Office. In February of 1984, he also worked part-time as a security guard at a local business establishment. On February 20, 1984, Santos underwent emergency abdominal surgery. The next day Santos' wife telephoned the City Clerk-Treasurer, informed him that Santos had undergone major surgery and stated that her husband would be unable to return to the office for an extended period of time.

Following his release from the hospital, Santos was advised by his physician not to return to work at his job with the City during his convalescence because the sedentary nature of the work might result in the serious complication of femoral thrombophlebitis, or blood clotting in the lower extremities. The physician prescribed a regimen of extensive walking each day and, as a means of fulfilling that regimen, permitted Santos to return to his part-time security guard job.

On two occasions in early March, the City Clerk-Treasurer telephoned Santos' residence, but Santos was not at home. On March 16, 1984, the Clerk-Treasurer sent a letter to Santos requesting a physician's letter explaining the reason for Santos' lengthy absence from work. The physician sent a responsive letter indicating that he would not allow his patient to return to the City job until March 26 because the nature of the work might cause clotting in the lower extremities. Santos returned to his job with the City on March 26, 1984.

On March 26, in response to a question by the Clerk-Treasurer, Santos stated that he had worked as a security guard during his convalescence. On April 6, 1984, Santos was discharged from his job with the City due to unsatisfactory performance and conduct unbecoming a City employee. Both of these grounds were based on an alleged abuse of the City's sick leave policies. Pursuant to applicable administrative procedures, Santos appealed his discharge to the City Manager. The manager concluded that the discharge was proper because Santos failed to ask his supervisor if he could return to his City job with a lightened workload during his convalescence and failed to initiate contact with his supervisor periodically during his convalescence to justify his continuing sick leave. Santos appealed this decision to the municipal court, which court affirmed on the ground that the City Manager had neither exceeded his jurisdiction nor abused his discretion. ¹ Santos did not seek further appellate review of his discharge.

Santos then applied for unemployment compensation benefits. The City filed a protest, arguing that under the doctrine of collateral estoppel the City Manager's determination that Santos was properly discharged prohibited Santos from obtaining unemployment compensation. The Deputy of the Division of Employment and Training rejected this argument and concluded that Santos was entitled to a full award of benefits pursuant to section 8-73-108(4)(b), 3 C.R.S. (1983 Supp.) (now codified at § 8-73-108(4)(b), 3B C.R.S. (1986)).

The City appealed, and a hearing was conducted by a Commission referee. The referee affirmed the Deputy's decision, concluding that Santos had acted reasonably and in accordance with medical advice, had ensured that his employer was notified immediately of his separation from employment and had responded promptly to his employer's request for information. The referee observed that, although City policy allowed employees in some circumstances to return to work early on light-duty assignments, the City's personnel rules placed no affirmative obligation upon an employee to initiate a request for light-duty work.

In affirming the referee's decision, the Commission noted that in its opinion there was substantial and competent evidence to support the conclusion that Santos had not violated any City policy. On appeal, the Court of Appeals affirmed the Commission's order. The Court of Appeals concluded that because unemployment compensation is a matter of statewide concern, home rule cities do not have subject matter jurisdiction concerning awards of unemployment benefits and, therefore, the Commission properly refused to apply the doctrine of collateral estoppel.

II

The City argues that the City Manager's determination that Santos should not be reinstated in his job collaterally estops the Commission from concluding that Santos should receive unemployment compensation benefits. We disagree.

A

Collateral estoppel, or issue preclusion, bars relitigation of an issue determined at a prior proceeding if: (1) the issue precluded is identical to an issue actually determined in the prior proceeding; (2) the party against whom estoppel is sought was a party to or was in privity with a party to a prior proceeding; (3) there was a final judgment on the merits in the prior proceeding; and (4) the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding. Salida School Dist. R-32-J v. Morrison, 732 P.2d 1160 (Colo.1987); Industrial Comm'n v. Moffat County School Dist. RE No. 1, 732 P.2d 616 (Colo.1987); People v. Hearty, 644 P.2d 302 (Colo.1982); Pomeroy v. Waitkus, 183 Colo. 344, 517 P.2d 396 (1973). Whether an employee has been properly discharged in accordance with applicable employment policies is an issue quite distinct from whether the employee should be disqualified from receipt of unemployment compensation benefits under pertinent provisions of the Colorado Employment Security Act. Gonzales v. Industrial Comm'n, 740 P.2d 999 (Colo.1987); Industrial Comm'n v. Moffat County School Dist. RE No. 1, 732 P.2d 616.

Santos was discharged for unsatisfactory performance and conduct unbecoming a City employee. However, an employee is not automatically denied unemployment benefits simply because the employee has been discharged; rather, benefits may be denied only if the discharge was due to one or more of several statutorily enumerated causes. Gonzales v. Industrial Comm'n, 740 P.2d 999; Industrial Comm'n v. Moffat County School Dist. RE No. 1, 732 P.2d 616. The statutory provision relevant to the Commission's inquiry of whether Santos was entitled to unemployment benefits is section 8-73-108(9)(a), 3 C.R.S. (1983 Supp.) (now codified at § 8-73-108(5)(e), 3B C.R.S. (1986)). That statute provides in pertinent part as follows:

(e) Subject to the maximum reduction consistent with federal law ... if a separation from employment occurs for any of the following reasons, the employer from whom such separation occurred shall not be charged for benefits which are attributable to such employment and, because any payment of benefits which are attributable to such employment out of the fund as defined in section 8-70-103(13) shall be deemed to have an adverse effect on such employer's account in such fund, no payment of such benefits shall be made from such fund:

....

(XX) For other reasons including, but not limited to, excessive tardiness or absenteeism, sleeping or loafing on the job, or failure to meet established job performance or other defined standards, unless such failure is attributable to factors listed in paragraph (b) or subsection (4) of this section.

§ 8-73-108(5)(e), 3B C.R.S. (1986) (emphasis added). Subsection (4) provides in pertinent part:

(4) Full award. An individual separated from a job shall be given a full award of benefits if any of the following reasons and pertinent conditions related thereto are determined by the division to have existed. The determination of whether or not the separation from employment shall result in a full award of benefits shall be the responsibility of the division. The following reasons shall be considered, along with any other factors which may be pertinent to such determination:

....

(b)(I) The health of the worker is such that he is separated from his employment and must refrain from working for a period of time, but at the time of filing his claim he is able and available for work, or the worker's health is such that he must seek a new occupation, or the health of the worker, his spouse, or his dependent child is such that the worker must leave the vicinity of his employment; except that, if the health of the worker or that of his spouse or his dependent child has caused the separation from work, the worker, in order to be entitled to a full award, must have complied with the following requirements: Informed his employer of the condition of his health or the health of his spouse or dependent child...