Durst v. ICAO

24CA1037 Durst v ICAO 11-07-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1037
Industrial Claim Appeals Office of the State of Colorado
DD No. 7999-2024

Gabriel Durst,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Jefferson
Hospitality LTD RLLLP,

Respondents.

ORDER AFFIRMED

Division VI
Opinion by JUDGE WELLING
Brown and Moultrie, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced November 7, 2024

Gabriel Durst, Pro Se

No appearance for Industrial Claim Appeals Office

Hall & Evans, L.L.C., Andrew D. Ringel, Denver, Colorado, for Respondent
Jefferson Hospitality LTD RLLLP
¶1 In this unemployment benefits case, claimant, Gabriel Durst,

seeks review of the final order of the Industrial Claim Appeals Office

(Panel). The Panel affirmed the hearing officer’s determination that

Durst was ineligible for unemployment benefits under section 8-73-

108(5)(e)(XX), C.R.S. 2024, because he was at fault for the

termination. We affirm the Panel’s order.

I. Background

¶2 Durst was fired from his job as a general manager for a hotel

after having worked there for about eight months. He applied for

unemployment benefits and a deputy for the Division of

Unemployment Insurance (Division) determined that Durst was

eligible for unemployment benefits based on his job separation.

¶3 Durst’s employer appealed the deputy’s decision. At the

hearing, one of the employer’s owners testified that he terminated

Durst because Durst had given himself an unauthorized raise of

$11,000 without prior approval of the ownership group and had

falsely told the employer’s accountant that the raise had been

approved by the owners. Durst, in contrast, testified that the raise

was authorized because it was part of his negotiated employment

package and in line with three other raises that he had given

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himself in the preceding months when higher paid managerial

employees had left the company.

¶4 The hearing officer reversed the deputy’s decision, finding that

Durst had given himself an unauthorized raise and, therefore, was

at fault for the termination. Consequently, the hearing officer

concluded that Durst was disqualified for unemployment benefits

under section 8-73-108(5)(e)(XX), which provides for disqualification

from benefits when a claimant fails to meet established job

performance norms.

¶5 Durst appealed the hearing officer’s decision, and on review,

the Panel affirmed the hearing officer’s determination. The Panel

determined that the employer’s testimony at the hearing supported

the hearing officer’s finding that Durst was at fault for the

termination because he gave himself an unauthorized raise, and

thus, was disqualified under section 8-73-108(5)(e)(XX).

II. Standard of Review and Applicable Law

¶6 As relevant here, we may set aside the Panel’s decision only if

the findings of fact don’t support the decision or if the decision is

erroneous as a matter of law. See § 8-74-107(6)(c)-(d), C.R.S. 2024.

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¶7 As for the hearing officer’s factual findings, we may not disturb

them if they are “supported by substantial evidence or reasonable

inferences drawn from that evidence.” Yotes, Inc. v. Indus. Claim

Appeals Off., 2013 COA 124, ¶ 10. The hearing officer assesses the

witnesses’ credibility, resolves any conflicts in the evidence, and

determines the weight to be accorded the evidence. See Tilley v.

Indus. Claim Appeals Off., 924 P.2d 1173, 1176 (Colo. App. 1996).

In making those determinations, the hearing officer is not required

to address specific evidence or testimony that the hearing officer

doesn’t find persuasive or make specific credibility determinations.

Id. at 1177.

¶8 We, like the Panel, may not reweigh the evidence presented or

disturb the hearing officer’s credibility determinations if they are

supported by substantial evidence in the record. See § 8-74-107(4)

(administrative findings of fact are conclusive if supported by

substantial evidence and in the absence of fraud); see also QFD

Accessories, Inc. v. Indus. Claim Appeals Off., 873 P.2d 32, 33 (Colo.

App. 1993) (a court may not disturb hearing officer’s resolution of

conflicting testimony when the credited testimony wasn’t incredible

as a matter of law). Rather, we must accept a hearing officer’s

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factual findings that are supported by substantial evidence or

reasonable inferences drawn from that evidence. See Yotes, ¶ 10.

¶9 A worker’s entitlement to unemployment benefits depends on

the reason for the separation from employment. Debalco Enters.,

Inc. v. Indus. Claim Appeals Off., 32 P.3d 621, 623 (Colo. App.

2001). The reason for the separation is a question for the hearing

officer as the trier of fact. See Eckart v. Indus. Claim Appeals Off.,

775 P.2d 97, 99 (Colo. App. 1989).

¶ 10 Eligible individuals are entitled to receive unemployment

benefits if they are unemployed through no fault of their own. § 8-

73-108(1)(a). “Fault” doesn’t necessarily require culpability but only

requires “a volitional act or the exercise of some control or choice in

the circumstances leading to the discharge from employment such

that the claimant can be said to be responsible for the termination.”

Richards v. Winter Park Recreational Ass’n, 919 P.2d 933, 934 (Colo.

App. 1996). In other words, an employee’s voluntary conduct that

causes their unemployment “may result in such individuals

receiving a disqualification.” § 8-73-108(1)(a).

¶ 11 Subject to exceptions not applicable here, a claimant may be

disqualified from receiving benefits when the separation from

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employment occurs for a “failure to meet established job

performance or other defined standards.” § 8-73-108(5)(e)(XX); see

also Richards, 919 P.2d at 935 (disqualification under section 8-73-

108(5)(e)(XX) is proper upon a showing that the claimant failed to

do the job for which he was hired and which he knew was expected

of him).

III. Discussion

¶ 12 On appeal, Durst asserts that the hearing officer’s findings

aren’t supported by the evidence. Specifically, he argues that the

hearing officer and Panel failed to consider (1) his testimony about

the agreement he had with one of the owners when he was hired

that guaranteed him raises to bring his salary up to $101,000;

(2) that the most recent $11,000 raise was consistent with three

other raises he had given himself and that the employer never

disputed; and (3) the evidence he had, in the form of text messages,

demonstrating the real motive for his termination. After reviewing

the record evidence and applying our applicable standard of review,

we perceive no basis to reverse the Panel’s order affirming the

hearing officer’s decision.

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¶ 13 Crediting the employer’s testimony, the hearing officer found

that (1) the employer had discussed the possibility of a raise with

Durst when he first hired him, but no specific date for the raise was

determined; (2) the raise would occur after the busy season; and (3)

the raise would be contingent on a performance review and the

employer’s financial condition. The hearing officer further found

that Durst had authorized the accountant to give him an $11,000

raise without discussing it with the employer. Based on those

findings, the hearing officer concluded that “[t]hese are not

circumstances under which a reasonable person would conclude

that he could give himself a raise in November, without further

discussing the matter with the [employer].” The hearing officer was

“persuaded that [Durst] knew he did not have authority to give

himself a raise” and concluded that Durst was at fault for the

separation and not entitled to receive unemployment benefits under

section 8-73-108(5)(e)(XX).

¶ 14 On review, the Panel noted that although conflicting testimony

was presented at the hearing, it couldn’t interfere with the hearing

officer’s assessment of the credibility of the witnesses and probative

value of the evidence. Thus, because substantial evidence

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supported the hearing officer’s determination that Durst was at

fault for the termination based on him having given himself an

unauthorized raise, the Panel affirmed the hearing officer’s decision.

¶ 15 As he did in his appeal to the Panel, Durst takes issue with

the hearing officer’s factual findings. Specifically, he argues that

both his testimony and the answers he provided to the Division’s

questionnaire contradict those findings. While that may be true, we

agree with the Panel that substantial evidence supports the hearing

officer’s finding that Durst gave himself an unauthorized raise, and

thus, was at fault for the termination and disqualified from benefits

under section 8-73-108(5)(e)(XX).

¶ 16 As the Panel noted, there is no indication in the record that

the hearing officer failed to consider all the evidence submitted.

Rather, the hearing officer isn’t required to address specific

evidence or testimony that the hearing officer doesn’t find to be

persuasive, and it’s apparent from the record that the hearing

officer found Durst’s testimony and documentary evidence to be

unpersuasive. See Tilley, 924 P.2d at 1177.

¶ 17 Because the hearing officer’s factual findings concerning the

basis of Durst’s separation from this employment are supported by

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substantial, although sometimes conflicting, evidence and the

reasonable inferences drawn from that evidence, we must accept

them on appeal. See § 8-74-107(4); Yotes, ¶ 10; Tilley, 924 P.2d at

1177. Based on the hearing officer’s factual findings, the Panel

properly upheld the hearing officer’s determination that Durst was

at fault for the separation and ineligible to receive unemployment

benefits under section 8-73-108(5)(e)(XX). See § 8-74-107(6); see

also Richards, 919 P.2d at 935.

¶ 18 To the extent Durst argues that additional evidence is

available that would support his claim, our review, like that of the

Panel, is limited to the record before the hearing officer; we may not

consider any factual assertions or evidence offered by Durst in

support of this appeal that he did not present at the hearing. See

§ 8-74-107(1); Goodwill Indus. v. Indus. Claim Appeals Off., 862

P.2d 1042, 1047 (Colo. App. 1993) (appellate court’s review is

limited to the evidence in the record before the hearing officer).

IV. Disposition

¶ 19 We affirm the Panel’s order.

JUDGE BROWN and JUDGE MOULTRIE concur.

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