Williams v. Dep't of Pub. Safety, Court of Appeals No. 14CA0390

CourtCourt of Appeals of Colorado
Citation369 P.3d 760
Docket NumberCourt of Appeals No. 14CA0390
Parties Brett L. WILLIAMS, Petitioner–Appellee and Cross–Appellant, v. DEPARTMENT OF PUBLIC SAFETY, Colorado State Patrol, Respondent–Appellant and Cross–Appellee, and State Personnel Board, Appellee.
Decision Date31 December 2015

369 P.3d 760

Brett L. WILLIAMS, Petitioner–Appellee and Cross–Appellant,
DEPARTMENT OF PUBLIC SAFETY, Colorado State Patrol, Respondent–Appellant and Cross–Appellee,
State Personnel Board, Appellee.

Court of Appeals No. 14CA0390

Colorado Court of Appeals, Div. III.

Announced December 31, 2015

Donachy Law Firm, LLC, Mary Donachy, Denver, Colorado; Scott Moss, Denver, Colorado, for Plaintiff–Appellee and Cross–Appellant.

Cynthia H. Coffman, Attorney General, Stacy L. Worthington, Senior Assistant Attorney General, Denver, Colorado, for Defendant–Appellant and Cross–Appellee.

Cynthia H. Coffman, Attorney General, Eric H. Maxfield, First Assistant Attorney General, Denver, Colorado, for Appellee.

Opinion by JUDGE WEBB

¶ 1 Brett L. Williams spent twelve years as a Colorado State Patrol (CSP) employee, climbing the ranks from trooper to captain.

369 P.3d 766

In 2010, he resigned from CSP to start a new career as a helicopter pilot. But when Williams applied for reinstatement just three months later, his most closely-guarded secret—he is gay—was revealed. After Williams failed a polygraph examination and a swift investigation concerning some of his responses, CSP refused to reinstate him. But was that decision illegal discrimination based on Williams' sexual orientation?

I. Background

A. Procedure

¶ 2 Williams filed a complaint with the State Personnel Board (Board). The complaint alleged that CSP had acted arbitrarily or capriciously and that it had discriminated against him on the basis of sexual orientation in violation of the Colorado Anti–Discrimination Act (CADA), sections 24–34–401 to –406, C.R.S. 2015. The Board referred the complaint to an administrative law judge (ALJ) for hearing.

¶ 3 After a five-day evidentiary hearing, the ALJ issued an initial decision with detailed factual findings that concluded that CSP's actions were arbitrary, capricious, and constituted unlawful discrimination based on sexual orientation. She awarded Williams front pay in lieu of reinstatement, back pay, attorney fees, and costs in amounts to be determined following action by the Board.

¶ 4 CSP appealed the initial decision to the Board. It affirmed all of the ALJ's conclusions and findings except for one: that CSP's culture was anti-gay. The Board then remanded the case for the ALJ to determine remedies.

¶ 5 After another evidentiary hearing, the ALJ issued an amended order awarding Williams $172,742 in back pay and $595,526 in front pay. Both parties appealed and the Board affirmed. Then CSP appealed and Williams cross-appealed to this court.

B. Facts

¶ 6 Williams began his career with CSP in 1998 as a trooper. His performance evaluations were consistently exceptional. He received several promotions over the next twelve years, ultimately becoming a captain. Throughout his tenure, Williams kept his sexual orientation secret, even to the point of displaying a photograph of a supposed girlfriend on his desk.

¶ 7 But after an involuntary transfer to a desk position that he did not "care for," Williams resigned in 2010. Before leaving, according to Williams, Major James Colley—his then immediate supervisor—assured him that if he returned to the force within a year, the reapplication process would be streamlined such that Williams would not have to undergo a polygraph examination and a full background check.

¶ 8 Three months later, Williams applied for reinstatement. James Wolfinbarger, the new chief, required Williams to complete a full background check and take a polygraph examination. This requirement was a change in policy from that of Wolfinbarger's predecessor.

¶ 9 During the pre-polygraph interview, Williams made two disclosures to examiner Sergeant Dean Paxton that became significant.

¶ 10 First, Williams described having once inadvertently viewed child pornography on an adult pornography website. When he realized that some of the actors were children, he explained that he had clicked out of the video and reported the video to the website administrator.

¶ 11 Second, Williams revealed that a massage in Thailand in 2006 "ended in sexual contact." Paxton asked Williams whether the "masseuse" was male or female; Williams responded male. CSP's polygraph policies prohibited asking questions to elicit an examinee's sexual orientation.

¶ 12 Williams testified that revealing information related to his sexual orientation during this interview heightened his anxiety during the examination. When Paxton asked whether Williams was concealing any unlawful sexual conduct, and he responded "no," the polygraph showed a "significant reaction," the highest Paxton had ever seen. Based on this reaction, Paxton concluded that Williams had failed the polygraph.

369 P.3d 767

Wolfinbarger soon learned about Williams' admissions during the interview and failed examination. He instructed Captain Dan Elder to find out whether CSP could deny reinstatement based solely on the polygraph results. Elder delegated this assignment to Sergeant Tim Keeton. After doing some research, Keeton told Elder that CSP could deny reinstatement based only on the polygraph results, although he also knew that denying reinstatement on this basis was not the best practice.

¶ 14 Elder reported Keeton's conclusion to Wolfinbarger. Lieutenant Colonel Scott Hernandez, in consultation with Wolfinbarger, decided not to reinstate Williams. Colley then told Williams that he would not be reinstated. Due to an intervening holiday and a furlough day, the process from examination to decision took about three business days.

II. Arbitrary or Capricious Claim

¶ 15 CSP first contends the Board did not have authority to review Williams' claim that CSP acted arbitrarily or capriciously in declining to reinstate him. Alternatively, CSP contends the record lacks sufficient evidence to support the ALJ's conclusion of an arbitrary or capricious hiring decision. Because we agree with CSP's first contention, its second contention is moot.

A. Preservation and Standard of Review

¶ 16 The parties agree that this issue is preserved.

¶ 17 Appellate courts review an agency's determination of its own jurisdiction de novo. Hawes v. Colo. Div. of Ins., 65 P.3d 1008, 1015 (Colo.2003). Still, they generally defer to the agency's reasonable interpretations of its own statutes. Gessler v. Colo. Common Cause, 2014 CO 44, ¶ 7, 327 P.3d 232. Specifically, if the statute is silent or ambiguous, "courts must consider whether the agency's regulation is based on a permissible construction of the statute." Xerox Corp. v. Bd. of Cty. Comm'rs, 87 P.3d 189, 192 (Colo.App.2003). But an appellate court does not defer to an agency interpretation that violates the plain language of the statute or the General Assembly's intent. Youngs v. Indus. Claim Appeals Office, 2012 COA 85M, ¶ 22, 297 P.3d 964.

B. Law

1. Comparing Board and Director Authority

¶ 18 The Board has authority to review adverse actions involving state employees. See Colo. Const. art. XII, § 13 (8) ("[p]ersons in the personnel system of the state"). But its power to review nonemployee appointment decisions arises from a single statute: section 24–50–125.3, C.R.S. 2015 ("[a]n applicant or employee"). This section permits the Board to review a "discriminatory or unfair employment practice[ ]" as defined in CADA. Id. But it does not empower the Board to consider a nonemployee's claim of arbitrary or capricious action. See id.

¶ 19 By contrast, the State Personnel Director (Director) has express statutory authority to review an appeal from "[a]ny person," which would include nonemployees. § 24–50–112.5(4)(a), C.R.S. 2015. And section 24–50–112.5(4)(b) grants the Director authority to overturn any action found to have been "arbitrary, capricious, or contrary to rule or law."

¶ 20 True enough, the Board has statutory authority to reverse or modify a determination by the Director should the Board conclude that either the action of the Director or that of the appointing authority whose action the Director reviewed was arbitrary or capricious. § 24–50–103(6), C.R.S. 2015.1 But the claim must be "appealable to the [B]oard pursuant to this article or the state constitution"

369 P.3d 768

for the Board to review it under section 24–50–103(6). Id.

¶ 21 A close look at the statutory framework shows the possibility of two separate but parallel appeals—one directly to the Board from an allegedly discriminatory action by an appointing authority and one to the Director from an allegedly arbitrary or capricious action by an appointing authority. See Ch. 351, sec. 15, § 24–50–112.5(4)(c) & (d), 2010 Colo. Sess. Laws 1626–27 (explaining that if any employee who has filed an appeal with the Director also files an appeal with the Board arising from the same action by an appointing authority, then the ninety-day period within which the Director must issue a written decision will be tolled until the Board's final decision, if both appeals arise from the same action). Thus, "all complaints about the selection ... 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." Cunningham v. Dep't of Highways, 823 P.2d 1377, 1380 (Colo.App.1991).

2. Statutory Construction Principles

¶ 22 Appellate courts first look to the General Assembly's chosen language to discern the legislative intent. See Steedle v. Sereff, 167 P.3d 135, 140 (Colo.2007). The court must "give effect to the General Assembly's choice of wording." Colo. Dep't of Pers. v. Alexander, 970 P.2d 459, 465 (Colo.1998). When the language is plain, the court must apply the text as written and not force or strain its interpretation. Welby Gardens Co. v. Adams Cty. Bd. of Equalization, 56 P.3d 1121, 1123 (Colo.App.2002), aff'd, 71 P.3d 992 (Colo.2003).

C. The ALJ's Determination

¶ 23 The ALJ concluded that she had authority to review Williams' claim that CSP had acted arbitrarily or capriciously.

¶ 24 In the...

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