Colorado Civil Rights Com'n v. Big O Tires, Inc.

• Decision Date: 30 June 1997
• Docket Number: No. 96SC184,96SC184
• Citation: 940 P.2d 397
• Parties: 75 Fair Empl.Prac.Cas. (BNA) 1781, 72 Empl. Prac. Dec. P 45,056, 21 Colorado Journal 909 COLORADO CIVIL RIGHTS COMMISSION and Karen Thurman, Petitioners, v. BIG O TIRES, INC., Respondent.
• Court: Colorado Supreme Court

Page 397

940 P.2d 397

75 Fair Empl.Prac.Cas. (BNA) 1781,

72 Empl. Prac. Dec. P 45,056,

21 Colorado Journal 909

COLORADO CIVIL RIGHTS COMMISSION and Karen Thurman, Petitioners, v. BIG O TIRES, INC., Respondent.

No. 96SC184.

Supreme Court of Colorado En Banc.

June 30, 1997.

Rehearing Denied July 28, 1997.

Gale A. Norton, Attorney General, Martha Phillips Allbright, Chief Deputy Attorney General, Richard A. Westfall, Solicitor General, Garth C. Lucero, Deputy Attorney General, Michael P. Serruto, First Assistant Attorney General, Civil Litigation Section, Denver, for Petitioner Colorado Civil Rights Commission.

Davis, Graham & Stubbs LLP, David R. Hammond, Andrew M. Low, Martin J. Katz, Brett C. Painter, Denver, for Respondent.

Barry D. Roseman, Denver, for Amicus Curiae Plaintiff Employment Lawyers Association.

Chief Justice VOLLACK delivered the Opinion of the Court.

We granted certiorari to review the court of appeals decision in Thurman v. Big O Tires, Inc., No. 94CA1076 (Colo.App. Dec. 21, 1995) (not selected for official publication), in which the court of appeals vacated the order of the Colorado Civil Rights Commission (the Commission). The court of appeals held that the record did not support a finding that Big O Tires, Inc. (Big O), discriminated against Karen Thurman (Thurman) because of her race when it discharged her. We granted certiorari to determine whether, in a claim of employment discrimination, additional evidence is required to infer intentional discrimination where a prima facie case of discrimination is proven and the employer's reasons for the employment decision are found to be a pretext for discrimination. We hold that no additional evidence is required to infer intentional discrimination in such circumstances and that in the current case, the court of appeals erroneously determined that additional evidence was necessary to support a finding of discrimination by Big O. We therefore reverse the court of appeals, reinstate the Commission's order finding discrimination against Thurman by Big O, and remand this case to the court of appeals with directions to consider the remaining undecided issues raised in Big O's notice of appeal.

I.

Thurman, an African-American woman, was employed by Big O as an inside sales clerk from April 9, 1987, to May 16, 1991. Big O paid Thurman an hourly wage and required her to record all of her hours on a mechanical time clock. Thurman's principal duties, along with two other employees who comprised the inside sales group, involved receiving telephone orders from Big O tire dealers and processing those orders for the warehouse, which in turn distributed the ordered merchandise to the dealers. At the time Thurman was terminated, she was the lead person for the inside sales group.

According to Big O, Thurman was terminated from her employment due to her violations of the company's policies regarding use of the mechanical time clock. In general, the policies required (1) that employees punch in and out at the beginning and end of work periods; (2) that employees punch out and in for lunch breaks; (3) that employees take lunch breaks for a specific length of time; and (4) that employees obtain a supervisor's approval and initials for any variations from the time clock policies. Apparently, Thurman had violated these time clock policies on numerous occasions from May 30, 1989, through April 24, 1991. Thurman received a written warning on April 24, 1991, indicating that her time clock violations were an ongoing problem and that termination would be the next step. On May 13 and 15, 1991, Thurman failed to clock out and in for her lunch break. On May 16, 1991, Thurman was terminated from her employment.

Another member of the inside sales group, Cherie Edmonds (Edmonds), a Caucasian woman, began working for Big O approximately one year after Thurman began her employment. Like Thurman, Edmonds violated Big O's time clock policies on numerous occasions from March 20, 1989, through May 24, 1991. Like Thurman, Edmonds received a written warning on April 24, 1991, indicating that her time clock violations were a serious problem and that termination would be the next step. On May 14, 1991, Edmonds worked through lunch without supervisor approval and left work early without supervisor approval, in violation of the time clock policies. On May 15, 1991, Edmonds was absent one-half of the day without supervisor approval. However, unlike Thurman, Edmonds received no immediate disciplinary action as a result of her time clock violations committed on May 14 and 15, 1991.

On May 22, 1991, Thurman filed a complaint with the Commission, alleging that Big O had discriminated against her on the basis of her race in violation of section 24-34-402, 10A C.R.S. (1988). Thurman's charge included the allegation that Edmonds had committed time clock violations at least as serious as those Thurman had committed, but Edmonds had not been discharged. Shortly after Big O received notification and a copy of Thurman's charge, Edmonds' supervisor reviewed her records. On June 25, 1991, Edmonds' supervisor terminated her employment, citing her violation of the time clock policies on May 14 and 15, 1991, as the reason for termination.

On October 12, 1991, the Commission issued a notice of determination and finding of probable cause. A hearing was held from May 18 through May 22, 1992. On October 15, 1992, the administrative law judge (ALJ) issued a decision finding that Big O had discriminated against Thurman on the basis of her race. Big O appealed to the Commission, which affirmed the ALJ's finding of discrimination. Big O then appealed to the court of appeals, which reversed the ALJ's finding of discrimination. The court of appeals found that the record did not support the ALJ's finding that Big O was motivated by race when it terminated Thurman's employment.

II.

A.

We must determine whether, under our state law, intentional discrimination may be inferred where a prima facie case of discrimination is proven and the reasons given for an employment decision are found to be a pretext for discrimination. Although we have not yet ruled on the evidence necessary for proving intentional discrimination in employment cases, the court of appeals has done so in two previous decisions.

In Colorado Civil Rights Commission v. State, 30 Colo.App. 10, 18, 488 P.2d 83, 87 (1971), the court of appeals recognized that, in cases alleging discrimination, direct evidence of overt discrimination is not a prerequisite to a finding of discrimination. However, the court of appeals held that, when an employee is discharged for what is apparently a legitimate reason, racial discrimination may not be inferred as a basis for the discharge unless such discrimination is supported by substantial evidence. Id. at 20, 488 P.2d at 87. Likewise, in Adolph Coors Co. v. Colorado Civil Rights Commission, 31 Colo.App. 417, 423, 502 P.2d 1113, 1116 (1972), the court of appeals held that when an employer asserts a legitimate reason for discharging a claimant, the claimant's discharge should be sustained unless the claimant can prove by substantial evidence that one reason for the discharge was racial discrimination. Id. Thus, our court of appeals has determined that intentional employment discrimination may not be inferred without substantial evidence of discrimination. Because this standard fails to address whether intentional discrimination may also be inferred when the employer's reason for an employment decision is found to be pretextual, we look to other jurisdictions for guidance in developing a framework for analyzing claims of employment discrimination.

Because the claim in the current case rests on the application of Colorado statutory law, federal law does not control the disposition of this case. However, we find federal law helpful in developing a thorough approach for proving intentional discrimination in state employment discrimination cases. Federal law is particularly helpful in this case because the language of the Colorado statute at issue, section 24-34-402(1)(a), 10A C.R.S. (1988), closely parallels that of its federal counterpart, section 2000e-2(a) of Title VII of the Civil Rights Act. ¹

In McDonnell Douglas Corp. v. Green, 411 U.S. 792, 93 S.Ct. 1817, 36 L.Ed.2d 668 (1973), the United States Supreme Court set forth the order and allocation of proof required for employment discrimination claims filed pursuant to Title VII. In McDonnell Douglas, the Supreme Court held that the complainant carries the initial burden of establishing a prima facie case of discrimination, which may be shown as follows:

(i) that he belongs to a racial minority; (ii) that he applied and was qualified for a job for which the employer was seeking applicants; (iii) that, despite his qualifications, he was rejected; and (iv) that, after his rejection, the position remained open and the employer continued to seek applicants from persons of complainant's qualifications.

Id. at 802, 93 S.Ct. at 1824. If the complainant establishes a prima facie case of discrimination, the burden shifts to the employer "to articulate some legitimate, nondiscriminatory reason for the [complainant's] rejection." Id. Once the employer meets its burden, the complainant must then "be given a full and fair opportunity to demonstrate by competent evidence that the presumptively valid reasons for his rejection were in fact a coverup for a racially discriminatory decision." Id. at 805, 93 S.Ct. at 1826; see also Texas Dep't of Community Affairs v. Burdine, 450 U.S. 248, 252-53, 101 S.Ct. 1089, 1093-94, 67 L.Ed.2d 207 (1981).

In St. Mary's Honor Center v. Hicks, 509 U.S. 502, 113 S.Ct. 2742, 125 L.Ed.2d 407 (1993), the Supreme Court clarified the effect of rejecting an employer's asserted nondiscriminatory reason for its employment decision:

The factfinder's disbelief of the reasons put forward by the defendant ... may, together with the elements of the...