Department of Health v. Donahue, No. 83SC91

• Docket Nº: No. 83SC91
• Citation: 690 P.2d 243
• Case Date: November 13, 1984
• Court: Supreme Court of Colorado

Page 243

690 P.2d 243 DEPARTMENT OF HEALTH, State of Colorado, Petitioner,
v.
Mamie DONAHUE and State Personnel Board, Respondent. No. 83SC91. Supreme Court of Colorado,
En Banc. Nov. 13, 1984.

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Duane Woodard, Atty. Gen., Charles B. Howe, Chief Deputy Atty. Gen., Richard H. Forman, Sol. Gen., Anthony Marquez, Asst. Atty. Gen., Denver, for petitioner.

James R. Gilsdorf, Denver, for respondent.

QUINN, Justice:

We granted certiorari to review the decision of the court of appeals in Department of Health v. Donahue, 668 P.2d 946 (Colo.App.1982), which held that Mamie Donahue, who was discharged as a probationary employee of the Department of Health without being accorded a predisciplinary meeting with her supervisor as provided by Personnel Rule 7-3-1, 4 C.C.R. 801-1 at 80 (1977), was entitled to reinstatement to her position with full back pay for the period of her discharge. We reverse the judgment.

I.

On May 23, 1977, Donahue was appointed on a probationary status to the position of Migrant Health Program Director in the Colorado Department of Health (department). Donahue's supervisor became dissatisfied with various aspects of Donahue's job performance, and on February 10, 1978, wrote Donahue a letter listing various deficiencies in her performance as director of the migrant health program and advising her of the necessity to take corrective action. On April 20, 1978, Donahue's supervisor met with her and handed her a signed letter of dismissal, effective May 5, 1978, because of unsatisfactory performance in various aspects of her employment duties, all of which were outlined in specific detail. Donahue, believing that the signed letter indicated a final decision on her discharge had been made, did not discuss the contents of the letter with her supervisor.

Donahue filed a timely appeal of her discharge with the State Personnel Board (board), alleging unlawful discrimination by the department. ¹ The board, pursuant to rule, referred the complaint to the Colorado Civil Rights Commission for investigation. ² On June 13, 1979, an investigator for the

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Civil Rights Commission issued an opinion of probable cause to believe that the department had unlawfully discriminated against Donahue on the basis of race or national ancestry. Following unsuccessful conciliation efforts between the department and Donahue, the matter was referred to the board for a hearing in October 1979.

On January 16, 1980, in compliance with the hearing officer's order for the filing of prehearing statements, Donahue submitted a statement listing the issues to be determined at the hearing. In addition to her discrimination claim, Donahue raised the claim that she had been denied a predisciplinary meeting as required by Personnel Rule 7-3-1, 4 C.C.R. 801-1 at 80 (1977), which was in effect at the time of Donahue's dismissal and provided as follows:

Appointing Authority To Meet With Employee Involved. When information received by the appointing authority indicates the possible need to administer disciplinary action, he shall meet with the employee involved, present the information that has come to his attention, and give the employee an opportunity to admit or present information regarding mitigating circumstances.

(A) It is not intended that this meeting constitute a formal hearing but only an opportunity for parties to meet and exchange information. Formal hearings to consider disciplinary actions are provided for in Chapter 8 of these Rules.

(B) If the employee wishes, he may submit a written explanatory statement to the appointing authority which shall be attached to and kept with each copy of the disciplinary action.

An evidentiary hearing was conducted in April 1980, and on July 17, 1980, the hearing officer made findings that "Donahue's race and heritage [were factors] motivating her discharge," and that the department had denied her a meaningful predisciplinary meeting as required by rule 7-3-1. Concluding that Donahue was wrongfully discharged, the hearing officer ordered Donahue's reinstatement with full back pay during the period of her discharge, with appropriate deductions for "any income received by her during that period for substitute employment or as unemployment compensation." The department appealed the hearing officer's decision to the board. The board reversed the hearing officer's finding of discrimination, but affirmed the finding of improper discharge due to the denial of a predisciplinary meeting and approved the order of reinstatement with full back pay during the period of discharge, reduced by substitute income or unemployment compensation.

Donahue did not challenge the board's reversal of the hearing officer's decision on discrimination. ³ The department, however, pursuant to section 24-4-106, 10 C.R.S. (1982), filed a petition for judicial review in the district court on the ground that the board erred in ordering reinstatement with full back pay due to the failure of Donahue's supervisor to provide her with a predisciplinary meeting. The district court ruled, in pertinent part, that Donahue was entitled to a predisciplinary meeting, and that the meeting with her supervisor on April 20, 1978, did not qualify as such a meeting; that Donahue timely raised the denial of the predisciplinary meeting before the hearing officer; and that the board's order of reinstatement with full back pay was appropriate.

The department appealed to the court of appeals, which affirmed the judgment of the district court. ⁴ The court of appeals

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held that Donahue's claim that she was deprived of a predisciplinary meeting was timely, because it was brought to the attention of the department prior to the evidentiary hearing conducted by the hearing officer. The court of appeals also held that, since Donahue's claim of wrongful discharge as the result of the deprivation of a predisciplinary meeting was timely, she was entitled to reinstatement with full back pay during the period of her discharge. We granted certiorari to consider two issues: whether the court of appeals erred in holding that Donahue's claim of wrongful discharge for lack of a predisciplinary meeting with her supervisor was timely raised; and, if so, whether the award of reinstatement with full back pay during the period of discharge is an appropriate remedy to redress the denial of a predisciplinary meeting to a probationary employee prior to discharge.

II.

The department argues that Donahue's failure to raise the denial of a predisciplinary meeting until approximately twenty months after her discharge constitutes a failure to minimize the avoidable consequences of her discharge and, as we interpret the department's argument, bars Donahue's claim for full back pay on grounds of waiver or estoppel. We are unpersuaded by the department's argument.

A.

Waiver is the intentional relinquishment of a known right or privilege. E.g., Millage v. Spahn, 115 Colo. 444, 175 P.2d 982 (1946); Gulf Insurance Co. v. State, 43 Colo.App. 360, 607 P.2d 1016 (1979). A waiver may be explicit, as when a party orally or in writing abandons an existing right or privilege; or it may be implied, as, for example, when a party engages in conduct which manifests an intent to relinquish the right or privilege, or acts inconsistently with its assertion. See People v. Abbott, 638 P.2d 781 (Colo.1982); Underhill v. Detert, 152 Colo. 223, 381 P.2d 265 (1963); Johnson v. Neel, 123 Colo. 377, 229 P.2d 939 (1951); People ex rel. Metzger v. Watrous, 121 Colo. 282, 215 P.2d 344 (1950). Although an intent to waive a benefit may be implied...