Cunningham v. Department of Highways, 89CA1241

• Citation: 823 P.2d 1377
• Case Date: March 14, 1991
• Court: Court of Appeals of Colorado

Page 1377

823 P.2d 1377 62 Empl. Prac. Dec. P 42,379 Charles CUNNINGHAM, Complainant-Appellee,
and
State Personnel Board, State of Colorado, Appellee,
v.
DEPARTMENT OF HIGHWAYS, Respondent-Appellant. No. 89CA1241. Colorado Court of Appeals,
Div. V. March 14, 1991.
Rehearing Denied Aug. 1, 1991.
Certiorari Denied Jan. 27, 1992.

Page 1378

Safran and Adkins, Hubert M. Safran, Denver, for complainant-appellee.

No appearance for appellee State Personnel Bd.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Steven A. Chavez, Asst. Atty. Gen., Denver, for respondent-appellant.

Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Mary Ann Whiteside, First Asst. Atty. Gen., Denver, amicus curiae for Dept. of Personnel.

Opinion by Judge CRISWELL.

The Colorado Department of Highways (department) seeks review of an order entered by the State Personnel Board (board),

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which determined that the department failed to promote one of its black employees, Charles Cunningham (complainant), because of his race and which directed the department to promote complainant and to undertake certain other affirmative action. In seeking this court's disapproval of that order, the department argues that (1) the board had no jurisdiction over the complainant's appeal because it was not filed in a timely fashion, (2) there is insufficient evidence to support the board's finding of racial discrimination, and (3) in any event, a portion of the remedy adopted by the board is unauthorized. We conclude that the board had jurisdiction over the controversy and that the record supports its findings of discrimination, but we also conclude that, in light of the violation that it found, its remedial order was too broad. Thus, we affirm the board's order in part and set it aside in part.

The complainant was first employed by the department in 1959 as a highway maintenance man and has been continuously employed with the department since that time. Claimant's original classification fell within the Equal Employment Opportunity (EEO) job category of technicians. Such an EEO job category is a broad grouping of jobs, all of which have similar skill levels.

In 1977, complainant successfully passed a promotional examination for the position of highway foreman and was placed number one on the eligibility list for that position. However, when a vacancy occurred in that job classification, the department reclassified the job from highway foreman to senior highway foreman in order to avoid appointing claimant to that position. As a consequence of charges filed by complainant at that time, the board found that the department had intentionally discriminated against him because of his race and ordered his appointment to the position of highway foreman with full back pay and benefits. When the department complied with this directive, complainant became the first black ever to hold a position with the department in the EEO job category of supervisors.

In January 1987, the department announced promotional examinations for three positions--highway maintenance superintendents I, II, and III. While the job functions of highway maintenance superintendents II and III are quite similar and while all three positions are within the EEO job category of administrators and officials, the board's administrative law judge (ALJ) found that the job responsibilities, and therefore the necessary qualifications, for highway maintenance superintendent I were substantially less than those for the other two positions. The ALJ likened the superintendent I position to that of an apprentice. Nevertheless, the department gave only a single examination, containing the same questions, for all three positions. In addition, all applicants for all three positions were subjected to the same interview procedures.

Complainant was allowed to take this examination, but only as an applicant for the position of highway maintenance superintendent I, the least responsible of the three positions.

After he was informed that he had failed this examination, he appealed, first, to the director of the state personnel department and, later, to the board. In both cases, he asserted that, similar to its action in 1977, the department's administration of the examination was manipulated so as to deny him promotion because of his race.

The director concluded that he lacked jurisdiction to consider this issue, but he ruled upon other objections that complainant had raised. His decision upon these other objections was later approved by the district court, and those objections are not the subject of this appeal.

The board referred complainant's charge of racial discrimination to the ALJ, who conducted an evidentiary hearing and, thereafter, found that the conduct of the examination by the department resulted in racial discrimination against complainant. The ALJ's initial decision, therefore, directed the department to appoint complainant to the position of highway maintenance superintendent I with full back pay and benefits. The board approved the ALJ's decision,

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but amended his order to require the department also to cease all discriminatory "practices and activities" and to prepare a plan to remove the adverse impact upon all black persons of its present "selection and employment policies and procedures."

I.

The department first argues that, because claimant failed to file a claim of discrimination with the board within ten days after being advised that he had failed the examination, the board lacked jurisdiction to rule upon his complaint. We disagree.

The pertinent state statutes give to state employees dual appeal rights.

First, if an employee feels aggrieved by any action taken in the "selection and examination process," that employee may file an appeal within ten days of that action with the director, who may either determine the issue himself or refer the matter to a three-member panel. The action complained of can be overturned only if it is determined to be "arbitrary, capricious, or contrary to rule or law." Section 24-50-112(3)(a), C.R.S. (1988 Repl.Vol. 10B). Any such decision is not reviewable by the board, but is subject to direct judicial review under § 24-4-106, C.R.S. (1988 Repl.Vol. 10A) of the Administrative Procedure Act.

On the other hand, § 24-50-125.3, C.R.S. (1988 Repl.Vol. 10B) governs all allegations by state employees of racial discrimination in employment, as described in § 24-34-402(1)(a), C.R.S. (1988 Repl.Vol. 10A). That statute provides that all charges of discrimination must be filed within ten days of the alleged practice with the board or with the Colorado civil rights division in the department of regulatory agencies.

Thus, all complaints about the selection and examination process not involving allegations of discrimination are to be filed with the director, while any claims of discrimination with respect to that process must be filed with the board or the civil rights division. See Personnel Board Rule 10-7-1, 4 Code Colo.Reg. 801-1 at 132-133.

The department argues, and we agree, that, if an appeal or a request for an extension of time is not filed within the statutory ten-day period, it is generally true that the agency lacks jurisdiction to review the action complained of. See State Personnel Board v. Gigax, 659 P.2d 693 (Colo.1983).

However, this is not true if the notice of the right to appeal, required to be given to the person who is adversely affected by that action, is not provided to that person. Salas v. State Personnel Board, 775 P.2d 57 (Colo.App.1988). Thus, if a state employee is not given notice of his right to pursue a claim of discrimination, and he has no actual knowledge of the procedure involved, then the statutory ten-day limitation period will start to run only after he receives notice thereof. Quicker v. Colorado Civil Rights Commission, 747 P.2d 682 (Colo.App.1987).

At the time of the events here, Personnel Board Policy 10-7-1(E), 4 Code Colo.Reg. 801-1 (May 1986 version at 114-115), required that:

"Employees and applicants shall be informed of their rights to seek review through grievance, petition for hearing, or appeal, including the time limits in which such rights and options must be exercised, and the official to whom correspondence should be directed."

However, the notice provided to complainant at the time he was advised that he had failed to pass the examination informed him only of his right to complain to the director; it failed to notify him that any claim of discrimination must be made to the board or to the civil rights division. As a result, when complainant was advised that he had failed the examination, he filed a timely appeal with the director and included a charge of racial discrimination.

The director, rather than simply forwarding complainant's charge of discrimination to the board, referred all of his complaints to a three-member panel in accordance with § 24-5-112(3)(a). However, when that panel rendered its decision, it noted that it

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lacked authority to consider complainant's charge of discrimination.

While the panel's decision, issued in July 1987, is the only evidence of record to indicate that complainant was ever advised of his appeal rights with respect to his charge of discrimination, complainant filed such a charge with the board before that decision was announced. Under these circumstances, therefore, the department cannot be heard to assert that complainant's appeal to the board was untimely. Salas v. State Personnel Board, supra; Quicker v. Colorado Civil Rights Commission, supra. Hence, we conclude that the board had jurisdiction to adjudicate complainant's claim of racial discrimination.

II.

The department also argues that the board's approval of the ALJ's finding of discrimination is not supported by the record evidence. However, our review of that evidence...