Colorado Civil Rights Commission v. State By and Through School Dist. No. 1, Bent County, s. 71--055

• Decision Date: 10 August 1971
• Docket Number: Nos. 71--055,24510,s. 71--055
• Citation: 488 P.2d 83,30 Colo.App. 10
• Parties: , 3 Fair Empl.Prac.Cas. (BNA) 1090, 3 Empl. Prac. Dec. P 8307 COLORADO CIVIL RIGHTS COMMISSION et al., Plaintiffs in Error, v. STATE of Colorado, By and Through SCHOOL DISTRICT NO. 1, BENT COUNTY et al., Defendants in Error. . I
• Court: Colorado Court of Appeals

Page 83

488 P.2d 83

30 Colo.App. 10, 3 Fair Empl.Prac.Cas. (BNA) 1090,

3 Empl. Prac. Dec. P 8307

COLORADO CIVIL RIGHTS COMMISSION et al., Plaintiffs in Error, v. STATE of Colorado, By and Through SCHOOL DISTRICT NO. 1, BENT COUNTY et al., Defendants in Error.

Nos. 71--055, 24510.

Colorado Court of Appeals, Div. I.

Aug. 10, 1971.

Duke W. Dunbar, Atty. Gen., John P. Moore, Deputy Atty. Gen., James E. Dotson, Asst. Atty. Gen., Denver, for plaintiffs in error.

Fred E. Sisk, Las Animas, Holme Roberts & Owen, Richard L. Schrepferman, Denver, for defendants in error.

PIERCE, Judge.

This case was transferred from the Supreme Court pursuant to statute.

This is an action to review a district court judgment reversing an order of the Colorado Civil Rights Commission in a proceeding arising under the Colorado Anti-Discrimination Act of 1957, C.R.S.1963, 80--21--1 et seq. Plaintiffs in error, Colorado Civil Rights Commission and its members, were respondents in the district court and will be collectively referred to as the 'Commission.' Mrs. Margarita R. Gallegos was also a party respondent in the district court and will be referred to as 'complainant' or by name. Defendants in error, School District No. RE--1, Bent County ('the Board'), Stephen J. Shuster and Leonard (Lenard) Smith, were petitioners in the district court and will be referred to by name or as 'petitioners.'

A complaint was filed with the Commission by Mrs. Gallegos against petitioners alleging that she was discharged from her employment as a teacher because of her Spanish-American necestry in violation of C.R.S.1963, 80--21--6(1), (2), and (6). The matter was heard in its entirety before a hearing examiner who entered his findings of fact, conclusions, and recommended order that the complaint be dismissed. Thereafter, by majority vote, the Commission declined to follow the hearing examiner's recommendation. Upon the testimony adduced before the hearing examiner, the Commission entered its findings of fact, conclusions of law, and order that the allegations in the complaint were sustained by the evidence and that Mrs. Gallegos was, in fact, discriminated against in her employment by petitioners due to her national origin or ancestry.

Petitioners thereafter sought review in the district court, pursuant to C.R.S.1963, 80--21--8, alleging: first, that the Commission was without jurisdiction over the subject matter; and second, that its finding of unlawful discrimination was not supported by substantial evidence.

The record indicates that Mrs. Gallegos was employed by the school district as an elementary tracher from 1966 until 1968. Being on a probationary status, her employment was subject to 1967 Perm.Supp., C.R.S.1963, 123--18--10, which provides:

'A teacher employed by a school district on a full-time basis who has not acquired tenure shall be deemed to be re-employed for the succeeding academic year at the salary which he would be entitled to receive under the general salary schedule unless the board thereof shall cause written notice to the contrary to be given to said teacher on or before the fifteenth day of April of the academic year during which said teacher is employed. Said teacher shall be presumed to have accepted such employment for the succeeding academic year unless he shall cause written notice to the contrary to be given to said board on or before said fifteenth day of April.'

On or about January 23, 1968, Mrs. Gallegos was interviewed by petitioner Lenard Smith, the principal of the school to which she was assigned. He advised her that he would not recommend her for employment during the next year and suggested that she resign. Past practice had been for the superintendent to concur in the principal's recommendations and for the school board to act affirmatively upon the recommendations of the superintendent. Evidence indicates that Mr. Smith did not condition a favorable recommendation for the complaint's future employment elsewhere upon her tendering a resignation.

The complainant tendered her resignation on February 6, 1968, and it was accepted by the Board on February 19, 1968. On February 23rd of the same year she requested that her resignation be withdrawn. This request was denied by the Board on March 4th. Approximately three weeks later the complainant filed her complaint with the Commission alleging discrimination.

Upon review of the Commission's order, the district court found that the complainant voluntarily 'resigned' from her employment and that she had not shown that she was 'discharged,' which is a prerequisite to the Commission's jurisdiction under the provisions of C.R.S.1963, 80--21--6. At the close of complainant's case, the court held that jurisdiction had been lost by the Commission at the time of her resignation and judgment was rendered in favor of petitioners. No findings were made by the district court on the issue of discrimination.

The Commission filed a motion for new trial, alleging that the judgment entered by the court was contrary to the law and the evidence. The trial court denied the motion, stating that the general assignments of error 'do not point out to the trial court with any degree of specificity the errors relied upon * * *', citing R.C.P.Colo. 59(f) as authority for its denial.

I.

Petitioners contend that the Commission's motion for new trial did not comply with R.C.P.Colo. 59(f) and this writ of error should be dismissed on grounds that the motion alleged general assignments of error without specifically noting the errors relied upon. We disagree with this contention.

In reviewing the Commission's decision, a district court performs the same function as an appellate court. As such, the district court is not the finder of fact. The findings of fact by the Commission are conclusive upon the district court if supported by substantial evidence. C.R.S.1963, 80--21--8(6).

Since the scope of judicial review by the district court of the Colorado Civil Rights Commission's decision does not involve any finding of fact, it was unnecessary for plaintiffs in error to move for a new trial and any errors in such a motion are inconsequential. A motion for new trial is not required where judgment is entered after any hearing not involving controverted issues of fact. R.C.P.Colo. 59(h). Brooks v. Zabka, 168 Colo. 265, 450 P.2d 653. See People v. Maxwell, 162 Colo. 495, 427 P.2d 310.

II.

The Commission contends that the district court erred in determining that its jurisdiction was lost due to complainant's failure to prove that she was discharged from her employment with the school district.

In its findings of fact, the Commission found:

'* * * on the record as a whole, that the Complainant, Margarita Gallegos, was, in fact, denied employment in the position of a school teacher for the Respondent School District. While we do not find that there was duress or coercion in having her sign her letter of resignation, it was nonetheless, a practice for all persons who terminated their employment with the district, whether by resignation or by discharge, to be required to execute a letter of resignation. This practice was followed in the case of the Complainant, but regardless of the practice, the effect was the same, she was told she would no longer be employed in that school system. Whether it is termed a discharge or refusal to hire, in either context she was denied employment which is a violation of law if it was because of her national origin or ancestry.'

The Commission's findings are conclusive upon the trial court if they are supported by substantial evidence. C.R.S.1963, 80--21--8(6). The record in this case adequately supports the Commission's jurisdiction based upon a constructive discharge of Mrs. Gallegos from her employment. The fact that Mrs. Gallegos submitted her resignation subsequent to her conference with Mr. Smith, at which time he had told her that he would not recommend her for rehiring, does not make her separation from employment by the school district a 'voluntary' resignation. There is testimony that the principal's recommendations to the school board in regard to proposed discharges were followed by them in the majority of cases. There is further evidence that Mrs. Gallegos would not have resigned her position if Mr. Smith had not stated that he would not give her a recommendation for rehiring.

The concept of 'constructive discharge' was developed in unfair labor practice cases and we feel that concept is applicable here. The fact of discharge does not depend upon the use of...