Colo. Dep't of Human Serv. v. Maggard

• Decision Date: 28 February 2011
• Docket Number: No. 09SC910.,09SC910.
• Parties: COLORADO DEPARTMENT OF HUMAN SERVICES, State Veterans Home at Fitzsimons, and Colorado State Personnel Board, Petitionersv.Norma Jean MAGGARD, Respondent.
• Court: Colorado Supreme Court

248 P.3d 708

COLORADO DEPARTMENT OF HUMAN SERVICES, State Veterans Home at Fitzsimons, and Colorado State Personnel Board, Petitioners

v.Norma Jean MAGGARD, Respondent.

No. 09SC910.

Supreme Court of Colorado, En Banc.

Feb. 7, 2011.Rehearing Denied Feb. 28, 2011.

John W. Suthers, Attorney General, Joseph F. Haughain, Senior Assistant Attorney General, Civil Litigation and Employment Law Section, Denver, Colorado, Attorneys for Petitioner Department of Human Services.John W. Suthers, Attorney General, Roxane D. Baca, Senior Assistant Attorney General, Kris A. Gomez, Assistant Attorney General, Business and Licensing Section, Denver, Colorado, Attorneys for Colorado State Personnel Board.Vonda G. Hall, Denver, Colorado, Attorney for Respondent.Chief Justice BENDER delivered the Opinion of the Court.

I. Introduction

In this appeal, we review the second of two court of appeals' opinions that reviewed a decision of the Colorado State Personnel Board (Board) upholding the termination of Respondent Norma Jean Maggard by the appointing authority of the Colorado Department of Human Services, State Veterans Home at Fitzsimons (appointing authority). Maggard v. Dep't of Human Servs. (Maggard II), 226 P.3d 1209 (Colo.App.2009). The Board had adopted the findings of fact made by an administrative law judge (ALJ) in an evidentiary hearing resulting from Maggard's appeal to the Board; however, the Board rejected the ALJ's conclusion of law that Maggard's termination was not within the range of reasonable disciplinary alternatives available to the appointing authority and upheld Maggard's termination. Maggard appealed the Board's decision to the court of appeals, and in an unpublished decision, the court of appeals held that the Board failed to provide an explanation why it substituted its judgment for that of the ALJ and, therefore, that the court could not determine whether the Board's decision was reasonable. Maggard v. Dep't of Human Servs. (Maggard I), 07CA0866, slip op., 2008 WL 3126254 (Colo.App. Aug. 7, 2008) (not selected for official publication). It remanded the case to the Board with directions to reconsider its decision to substitute its judgment for the ALJ's and to provide reasons based on the record if it determined that termination was warranted.

On remand, by a vote of two to two, the Board upheld its decision to substitute its judgment for that of the ALJ and uphold Maggard's termination by the appointing authority. Maggard again appealed to the court of appeals, and in Maggard II, the court of appeals held that the Board acted capriciously or arbitrarily by failing to give candid and honest consideration to the evidence before it and failing to provide an explanation for its conclusion that was contrary to that of the ALJ.

We review only the court of appeals' opinion in Maggard II. We agree fully with the Board's reasoning and disagree with the court of appeals' decision to reverse the Board. Specifically we hold that: (1) the Board acted properly in upholding Maggard's termination because it lacked the three votes necessary to overturn the appointing authority's decision and (2) the Board's decision to uphold Maggard's termination is neither arbitrary nor capricious and is supported by the record. Accordingly, we reverse the court of appeals and reinstate the Board's termination order.

II. Facts and Proceedings Below

DHS employed Maggard as a certified nursing assistant at the Colorado State Veterans Home at Fitzsimons. On January 3, 2006, the appointing authority of DHS terminated Maggard stating that her actions constituted a “failure to perform competently, willful misconduct and a willful failure to perform.” In the written termination notice, the appointing authority set forth actions which the appointing authority found to justify termination: (1) Maggard's failure to complete anger management classes as ordered by an August 24, 2005 corrective action for comments she made in front of patients and for yelling and shaking her finger in the face of the assistant director of nursing; (2) Maggard's failure to submit a doctor's note for absences on November 28 and 29, 2005, relating to a sore tooth; (3) Maggard's November 30, 2005 interaction with her scheduler, during which Maggard spoke in an angry, rude, and loud voice about her decision not to attend the anger management class; and (4) Maggard's December 1, 2005 interaction with the facility's assistant director of human resources, in which Maggard said she was “sick of this shit” after the assistant director placed her on administrative leave.

In reaching the decision to terminate Maggard, the appointing authority also considered that Maggard had a prior memorandum in her file about angry outbursts, that she had received a low rating of “1” in her April 2005 performance review for her ability to resolve conflicts, and that the facility had made prior attempts to assist her in avoiding angry outbursts by having her attend a conflict resolution class and an anger management class.

Maggard appealed her termination by the appointing authority to the Board. The Board appointed an ALJ to conduct a hearing on its behalf. § 24–50–125.4(3), C.R.S. (2010). After an administrative hearing, the ALJ issued an initial decision. The ALJ found that Maggard committed some, but not all, of the acts for which she was disciplined by the appointing authority and that, as to some of the acts committed, there were mitigating circumstances that did not excuse her conduct but made it more explicable. Specifically, the ALJ found conflicting evidence as to whether Maggard was required to submit a doctor's note for her absences on November 28 and 29. The ALJ also found that Maggard was loud, rude, and angry in her interactions with her scheduler and with the facility's assistant director of human resources but that DHS had not proven that the incidents were as serious as initially alleged. As to all other allegations, the ALJ affirmed the facts alleged by the appointing authority.

Given these findings, the ALJ stated that Maggard is an employee who has had problems with loud and intemperate comments while at work but that she is learning to tone down her comments and that the actions for which she was terminated were not of the magnitude of prior actions for which she was disciplined. After discussing its findings of fact, the ALJ entered four conclusions of law: (1) Maggard committed some, but not all, of the acts for which she was disciplined; (2) the appointing authority's action in disciplining Maggard was not arbitrary, capricious, or contrary to rule or law; (3) termination was not within the range of reasonable alternatives; and (4) attorney's fees were not warranted. Therefore, the ALJ overturned Maggard's termination and ordered the appointing authority to reinstate her.

DHS appealed the ALJ's decision to the Board. On appeal from the ALJ, the Board considered the entire record, including the initial decision of the ALJ and briefing by the parties. By a vote of two to one, the Board adopted all of the ALJ's findings of fact and conclusions of law except for Conclusion 3 that termination was not within the range of reasonable disciplinary alternatives. The Board stated that, based on its review and consideration of the record, it decided to reverse the ALJ's Conclusion 3, and it issued an order upholding the appointing authority's decision to terminate Maggard.

Maggard appealed the Board's decision to the court of appeals, and, in an unpublished decision, the court reversed the Board. Maggard I, 07CA0866, slip op. at 10. In Maggard I, the court of appeals determined that the Board had the authority to substitute its own judgment for that of the ALJ on an ultimate conclusion of fact so long as the Board's finding had a reasonable basis in law. Id. at 7–8. However, the court held that, because the Board gave no reasons for overturning the ALJ's Conclusion 3, it could not decide whether the Board's decision to reverse Conclusion 3 was reasonable. Id. at 9. The court of appeals therefore remanded the case to the Board, instructing it to reconsider its decision to reject Conclusion 3 and to provide reasons based on the record if it decided to uphold Maggard's termination. Id.

On remand, the Board upheld its decision to reject the ALJ's Conclusion 3 that termination was beyond the range of reasonable disciplinary alternatives available to the appointing authority. At the Board's meeting, the Board considered the record on appeal and, based on the record, took the following two actions. By a vote of two to two, it rejected a motion to uphold the entirety of the ALJ's decision, including Conclusion 3 that termination was beyond the range of reasonable disciplinary alternatives. It also rejected a second motion, which would have held that the action of the appointing authority was arbitrary and capricious, because no member of the Board offered to second the motion.

In its second order upholding Maggard's termination, the Board explained its reasoning as to its decision to reject both motions. The Board reasoned that, to overturn or modify the action of the appointing authority, section 24–50–103(6), C.R.S. (2010) requires at least three Board members to find that the action was “arbitrary, capricious, or contrary to rule or law.” Because “no more than two of the four Board members were willing to vote to overturn or modify the decision of the appointing authority[,] ... the decision of the appointing authority stands and Complainant's termination stands.”

Maggard again appealed to the court of appeals. Maggard II, 226 P.3d at 1209. Reasoning that the Board in its second order failed to articulate its basis for upholding Maggard's termination, the court of appeals in Maggard II reversed the Board and remanded the case with instructions to reinstate the initial decision of the ALJ. Id. at 1213–14. It concluded that “the record as a whole supports the...