Engraff v. Industrial Com'n

Decision Date13 October 1983
Docket NumberNo. 82CA1167,82CA1167
PartiesSadhna S. ENGRAFF, Petitioner, v. INDUSTRIAL COMMISSION of the State of Colorado (Ex-Officio Unemployment Compensation Commission of Colorado), Colorado Division of Employment and Training, and Public Service Company of Colorado, Respondents. . III
CourtColorado Court of Appeals

William E. Benjamin, Boulder, for petitioner.

J.D. MacFarlane, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., Joel W. Cantrick, Sol. Gen., Patricia A. Blizzard, Asst. Atty. Gen., Denver, for respondent Industrial Commission and Division of Employment and Training.

Kelly, Stansfield & O'Donnell, Robert F. Thompson, Denver, for respondent Public Service Co. of Colo.

STERNBERG, Judge.

Public Service Company of Colorado terminated Sadhna S. Engraff from his job when he refused to comply with mandatory safety regulations and because he refused a substitute position. He refused to comply with safety regulations requiring that he wear a safety helmet and respirator because they conflicted with his religious practices. The Industrial Commission disqualified Engraff from receiving unemployment compensation benefits for 12 weeks, ruling that his deliberate disobedience of reasonable company rules was sufficient basis for discharge, and that Public Service had made a reasonable attempt to accommodate him. We set aside the order.

Engraff began working for Public Service in 1972. In 1976, he entered an apprenticeship program at the end of which he would have been a substation electrician. In this capacity, Public Service and the Occupational Safety & Health Administration (OSHA) rules require that, at certain times, he wear a specially fitted safety helmet. In an emergency situation he could also have been required to wear a respirator which would be effective only if there were a seal between the employee's face and the respirator mask.

In June 1980, Engraff notified Public Service that he had become a member of the Sikh Dharma Brotherhood, a religion that requires its members to wear a turban in public, and forbids them to cut their facial and body hair. His supervisors determined that the turban would interfere with the effectiveness of the safety helmet, and that facial hair would prevent an adequate seal surrounding the respirator mask. Public Service feared that failure to comply with these safety regulations would result in exposure to workmen's compensation liability and third-party tort suits, would have an adverse impact on its safety record, and would entail the possibility of monetary sanctions by OSHA for failure to enforce the regulations. Although OSHA had issued a directive exempting members of the Brotherhood from wearing the helmet, Public Service still feared sanctions regarding the respirator. Accordingly, Public Service informed Engraff that it would have no choice other than to suspend him if he would not agree to comply with the safety regulations.

Engraff was suspended without pay on June 30, 1980, when he came to work wearing a turban. Public Service offered to find Engraff an alternative position where its safety regulations would not interfere with his religious practices. The only job available was a clerical position which would not utilize his four and one-half years of training, and for which he had no experience. In his job as an electrician he lived in Boulder, worked in that area, enjoyed union protection, and was paid $9.48 per hour. The clerical position would have required that he move from his Boulder residence or commute to Denver, it was a non-union position, and would have paid $6.36 per hour. He was offered the position in August 1980, but did not accept it because of those differences. Public Service thereafter terminated his employment.

Engraff applied for, but was denied, unemployment benefits. He appealed this decision. At a hearing before a referee the sincerity and authenticity of Engraff's beliefs were not disputed. The referee found that strict enforcement of the safety regulations was reasonable, and that the alternative job offer was unsuitable because it would have required a considerable cut in pay. Based on these findings, the referee concluded that Engraff should not be penalized for refusing the alternative job, but that he had been discharged because he was unable to comply with reasonable safety requirements and was therefore not entitled to a full award of benefits.

Engraff sought review of that decision from the Industrial Commission, arguing that under the First Amendment his persistence in his religious beliefs did not render him "at fault" in causing the separation, and that Public Service did not make a reasonable effort to accommodate his religious preferences as required by Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2(a)(1); § 2000e(j) (1976 ed.).

The Commission found that Engraff was discharged for deliberately disobeying reasonable company rules. It concluded that the referee erred in considering the job offered in terms of whether it was "suitable" under the predecessor to § 8-73-108(5)(d)(I), C.R.S.1973 (1982 Cum.Supp.) because that provision applies only to an offer made after termination. Instead, the Commission concluded that the job offer should be examined solely in terms of whether it was a reasonable effort to accommodate Engraff's religious beliefs. Finding that it was a reasonable accommodation, the Commission concluded that Engraff must bear the burden of the separation, and made an award of reduced benefits. He petitioned the Commission for review of its decision, contending that the Commission misinterpreted the issue as being the reasonableness of the accommodation. He asserted that the issue was whether the job was suitable within the meaning of § 8-73-108(5)(d), C.R.S.1973 (1982 Cum.Supp.). The petition was denied.

I.

In response to Engraff's argument in this review that the Commission's decision violated his First Amendment right to the free exercise of his religion, the respondents argue that this issue cannot now be raised because it was not included in his petition to review the final order. We disagree.

Any party dissatisfied with an initial decision of the Commission must petition the Commission for review of its decision before an action may be brought in the Court of Appeals. Section 8-74-104, C.R.S.1973 (1982 Cum.Supp.). Engraff followed this procedure. The petition took issue with the entire structure of the Commission's decision so that the argument raised here on review would be an issue only if the Commission persisted in its interpretation of the Act. The issue of Public Service's obligation to accommodate Engraff's religious beliefs was fully briefed when he appealed the referee's decision. It was not raised for the first time in this court, and the Commission was sufficiently apprised of Engraff's objection to the ruling to enable it to correct its error. Thus, asserting a First Amendment argument on appeal does not contravene the procedural scheme of the Act. See Yanish v. Industrial Commission, 38 Colo.App. 492, 558 P.2d 1007 (1976).

II.

Addressing the substantive issues, Public Service contends that the public interest in safety justifies requiring Engraff to bear responsibility for his separation, and that it met its duty reasonably to accommodate his...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT