Morrison v. ICAO

24CA1061 Morrison v ICAO 11-27-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1061
Industrial Claim Appeals Office of the State of Colorado
DD No. 9171-2024

Chris Morrison,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Stolle Machinery
Company, LLC,

Respondents.

ORDER SET ASIDE AND CASE
REMANDED WITH DIRECTIONS

Division I
Opinion by JUDGE SULLIVAN
J. Jones and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 27, 2024

Chris Morrison, Pro Se

No Appearance for Respondents
¶1 Chris Morrison seeks review of a final order of the Industrial

Claim Appeals Office (the Panel) disqualifying him from receiving

unemployment insurance benefits based on his job separation from

Stolle Machinery, LLC (Stolle). We set aside the Panel’s order and

remand for further proceedings.

I. Background

¶2 Beginning on July 10, 2023, Stolle employed Morrison as a

network and computer systems administrator. When Stolle

terminated his employment on January 25, 2024, Morrison applied

for unemployment benefits from the Division of Unemployment

Insurance (Division). After reviewing evidence regarding the

reasons for Morrison’s job separation, a Division hearing officer

found Morrison disqualified from receiving benefits under section 8-

73-108(5)(e)(XX), C.R.S. 2024, which forecloses benefits where the

claimant’s failure to meet job performance or other defined

standards proximately caused the job separation.

¶3 The Panel affirmed the hearing officer’s findings and legal

conclusions.

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II. Analysis

¶4 Morrison argues, as he did below, that the hearing officer

predicated her proximate cause conclusion on three erroneous

factual findings. First, he challenges the hearing officer’s finding

that he breached Stolle’s confidentiality policies by identifying

himself with the username “chrisstolle” while participating in a

public Microsoft online forum. He argues the hearing officer

incorrectly found this username constituted “sensitive” information,

the public dissemination of which Stolle expressly forbade. Second,

he challenges the hearing officer’s finding that he failed to meet job

performance or other defined standards when communicating with

non-IT users. And third, he challenges the finding that he failed to

meet those standards by accessing an email server without express

authorization. We address each finding in turn.1

1 To the extent Morrison also contends for the first time on appeal

that Stolle fraudulently induced him to enter into an employment
contract in July 2023, and then breached the contract, that claim
isn’t properly before us, and thus we don’t address it. See People in
Interest of M.B., 2020 COA 13, ¶ 14 (appellate courts generally only
review matters presented to and adjudicated by the lower tribunal).

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A. Standard of Review and Legal Principles

¶5 Under section 8-74-107, C.R.S. 2024, we may not disturb

factual findings “supported by substantial evidence” and may only

set aside the Panel’s decision if (1) the Panel acted without or in

excess of its powers; (2) the decision was procured by fraud; (3) the

factual findings don’t support its decision; or (4) the decision is

erroneous as a matter of law. Substantial evidence is “probative,

credible, and competent, of a character which would warrant a

reasonable belief in the existence of facts supporting a particular

finding.” Rathburn v. Indus. Comm’n, 566 P.2d 372, 373 (Colo. App.

1977). Mere conclusions thus do not suffice. Wecker v. TBL

Excavating, Inc., 908 P.2d 1186, 1188-89 (Colo. App. 1995)

(“[E]vidence is not substantial if it . . . constitutes a mere

conclusion.”). We decide as a matter of law whether substantial

evidence exists. Pub. Serv. Co. of Colo. v. Pub. Utils. Comm’n, 26

P.3d 1198, 1205 (Colo. 2001).

¶6 Section 8-73-108(5)(e)(XX) disqualifies a claimant from

receiving benefits if the claimant’s “failure to meet established job

performance or other defined standards” proximately caused their

job separation. To evaluate proximate cause, the hearing officer

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considers the totality of the evidence and determines the motivating

factors in the employee’s separation. Eckart v. Indus. Claim Appeals

Off., 775 P.2d 97, 99 (Colo. App. 1989). A claimant is properly

disqualified under subsection (5)(e)(XX) if the claimant knew what

was expected of them and nonetheless failed to “satisfactorily

perform the job.” Pabst v. Indus. Claim Appeals Off., 833 P.2d 64,

64-65 (Colo. App. 1992).

¶7 The disqualifying provisions of section 8-73-108(5)(e) “must be

read in the light of the express legislative intent . . . to provide

benefits to those who become unemployed through ‘no fault’ of their

own.” Cole v. Indus. Claim Appeals Off., 964 P.2d 617, 618 (Colo.

App. 1998) (quoting § 8-73-108(1)(a)). Thus, even if the hearing

officer’s findings may support a disqualification under that section,

a claimant may still be entitled to benefits if the totality of the

circumstances establishes that their job separation occurred

through no fault of their own. Id. In this context, “fault” requires

“a volitional act or the exercise of some control or choice by the

claimant in the circumstances resulting in the separation such that

the claimant can be said to be responsible for the separation.” Id.

A claimant’s “fault” for their job separation is “an ultimate legal

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conclusion to be based on the established findings of evidentiary

fact.” Id. at 618-19.

B. Confidentiality Policies

¶8 Morrison identified himself as “chrisstolle” while participating

in the public online forum. The hearing officer found that this

username constituted “sensitive” information “that could have led to

the employer’s network and led to cyber security issues.”

¶9 Neither party disputes the hearing officer’s findings that, at all

relevant times, Stolle maintained written policies restricting

employees’ dissemination of confidential or sensitive information,

and that Morrison was aware of those policies and the

consequences of violating them. Specifically, under Stolle’s policies,

“[i]nformation about security measures for Stolle’s computer and

network systems are [sic] confidential and must not be released to

people who are not authorized users of the involved systems unless

the written permission from the [Chief Information Officer (CIO)]

has first been obtained.” Additionally, “[u]nless it has specifically

been designated as public information, all Stolle information

including Intellectual Property (IP) must be protected from

disclosure to third parties.” As pertinent here, in the context of

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social media, employees must “treat [Stolle’s] trade secrets,

intellectual property, and other proprietary information [as]

confidential and not do anything to jeopardize or unwittingly

disclose these” on such platforms. Employees who violate these

policies “are subject to disciplinary action, up to and including

termination.”

¶ 10 We conclude that the record lacks adequate support for the

hearing officer’s finding that Morrison breached the foregoing

policies by identifying himself as “chrisstole” while participating in

the public online forum. At the hearing, Stolle’s Human Resources

Generalist, Mark Darnell, claimed that the username constituted

“sensitive information” because an unauthorized third party could

“gather [additional sensitive] information regarding Stolle’s

network.” Darnell offered no explanation for this claim, however,

nor have we found any other evidence in the record explaining how

a username made up solely of Morrison’s first name and the

company’s name (which is in the public domain), in and of itself,

constitutes “sensitive information.”

¶ 11 Darnell’s conclusory testimony that the username “chrisstolle”

constitutes “sensitive information” doesn’t qualify as substantial

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evidence. See Wecker, 908 P.2d at 1188-89 (mere conclusions don’t

constitute substantial evidence). Because we have not located any

other evidence in the record supporting the hearing officer’s finding

that Morrison’s username constituted “sensitive information,” this

finding is insufficient to support the hearing officer’s

disqualification determination. See § 8-74-107(4), (6).

C. Communications with Non-IT Users

¶ 12 The hearing officer also found that Morrison fell short of job

performance standards by failing to communicate effectively with

non-IT users on multiple dates between July 2023 and November

2023, and that this shortcoming, in part, proximately caused the

termination of his employment. Substantial evidence supports this

finding.

¶ 13 The parties agree that Stolle expected Morrison to avoid using

“technical terms” non-IT users might find confusing. Morrison

acknowledged that he had perhaps used overly technical terms on

one occasion in July 2023, when he asked users to identify printers

by their IP addresses. Morrison doesn’t dispute that his supervisor

spoke with him on July 27, 2023, regarding that incident and

counseled him to avoid using overly technical terms when

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communicating with non-IT users. Morrison testified that, following

that discussion, he avoided using technical terms in his subsequent

communications with non-IT users.

¶ 14 Stolle contended, however, that Morrison continued using

overly technical terms in his communications with non-IT users,

requiring his supervisor to meet with him multiple times to reiterate

Stolle’s expectations. Stolle’s representative, Darnell, testified at

the hearing that this pattern of unacceptable communications, in

part, proximately caused Morrison’s job separation, explaining that

he “was getting too involved in too much IT detail which then just

confused employees that weren’t trained in IT issues.” We defer to

the hearing officer’s decision to credit the testimony of Stolle’s

representative. See Hoskins v. Indus. Claim Appeals Off., 2014 COA

47, ¶ 10. Based on the testimony presented, we conclude that

substantial evidence supports the hearing officer’s finding that

Morrison’s job separation was partly caused by his failure to meet

established job performance standards with respect to

communications with non-IT users.

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D. Server Access

¶ 15 Finally, the hearing officer also found that Stolle terminated

Morrison’s employment, in part, because his decision to access an

email server without authorization violated Stolle’s job performance

standards regarding cyber security. The hearing officer further

found that Morrison’s supervisor had counseled Morrison regarding

cyber security best practices after this incident.

¶ 16 Morrison doesn’t dispute that he accessed a Stolle email server

without authorization on January 5, 2024. Though Morrison

contends he didn’t require the CIO’s authorization to access the

server, a written Stolle policy admitted into evidence says that

“[l]ogging into Stolle’s servers require[s] approval from Stolle’s CIO.”

Because this policy is clear on its face and the relevant facts are

undisputed, the record supports the hearing officer’s finding that

Morrison failed to meet established job performance or other

defined standards in this instance.

III. Insufficient Remaining Factual Findings

¶ 17 The hearing officer found that in each of the foregoing

instances Morrison violated Stolle’s established job performance or

other defined standards, and that these violations, collectively,

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proximately caused his job separation. Given our holding that

substantial evidence didn’t support the hearing officer’s finding that

Morrison’s use of the “chrisstolle” username violated Stolle’s

confidentiality policies, we can’t discern from the record whether

the fact finder would have found that Morrison’s second and third

violations (his overly technical communications and his

unauthorized server access) proximately caused his job separation.

¶ 18 Nor can we discern whether the fact finder would have found

that the totality of the circumstances, narrowed to only those two

violations, supported a finding that Morrison was at fault for his job

separation. Removing the incident involving Morrison’s Microsoft

online forum post from the equation leaves insufficient factual

findings to support the legal conclusions of disqualification and

fault. For this reason, we set aside the Panel’s order and remand

the case for further factual findings on these specific issues. See,

e.g., City & Cnty. of Denver v. Indus. Claim Appeals Off., 833 P.2d

881, 883 (Colo. App. 1992) (setting aside the Panel’s order and

remanding for further findings on claimant’s eligibility for benefits);

Esparza v. Indus. Comm’n, 702 P.2d 288, 290 (Colo. App. 1985)

(similar).

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IV. Disposition

¶ 19 The Panel’s order is set aside and the case is remanded to the

Panel for further proceedings consistent with this opinion.

JUDGE J. JONES and JUDGE LIPINSKY concur.

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