Brito-Chavez v. ICAO

24CA0924 Brito-Chavez v ICAO 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0924

Industrial Claim Appeals Office of the State of Colorado

DD No. 5724-2024

Antonio Brito-Chavez,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Mountain States

Asphalt Paving Inc,

Respondents.

ORDER AFFIRMED

Division V

Opinion by JUDGE LUM

Freyre and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)

Announced September 5, 2024

Antonio Brito-Chavez, Pro Se

No Appearance for Industrial Claim Appeals Office of the State of Colorado

Dar Thompson, Authorized Representative, Commerce City, Colorado, for

Mountain States Asphalt Paving Inc

1

¶ 1 In this unemployment benefits case, Antonio Brito-Chavez

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

(the Panel) affirming a hearing officer’s decision disqualifying him

from receiving unemployment benefits after finding that he quit his

employment with Mountain States Asphalt Paving, Inc. (Mountain

States). We affirm.

I. Background

¶ 2 Mountain States employed Brito-Chavez as a dump truck

driver for approximately six months. After he was late to work

multiple times and then was a no-call, no-show, he showed up to

work, argued with his supervisor, and then walked off the premises.

Brito-Chavez filed for unemployment benefits, which were initially

granted. Mountain States contested the award of benefits and

applied for a hearing.

¶ 3 Brito-Chavez received notice of the hearing but did not appear.

His supervisor, Dar Thompson, testified at the hearing that, after a

no-call, no-show on December 6, 2023, Brito-Chavez showed up the

next day at the worksite, argued with him, and then threatened to

physically fight him. Thompson testified that he is seventy years

old and Brito-Chavez is half his age. Thompson testified that, while

2

“it almost came to fisticuffs,” Brito-Chavez eventually cursed and

walked away. Thompson concluded that Brito-Chavez “got real mad

and he quit.”

¶ 4 The hearing officer issued a decision on March 26, 2024,

concluding that Brito-Chavez resigned due to dissatisfaction with

his supervisor, disqualifying him from benefits under section 8-73-

108(5)(e)(II), C.R.S. 2024 (quitting employment because of

dissatisfaction with supervision not shown to be other than that

reasonably to be expected in the proper performance of work). The

hearing officer reversed the deputy’s initial award of benefits.

¶ 5 Brito-Chavez appealed the hearing officer’s decision to the

Panel, asserting that he had missed the hearing due to a family

emergency. The Panel emailed him questions, asking why he failed

to check in for the hearing in advance and inquiring in more detail

about the timing of the family emergency. Brito-Chavez did not

respond to the emails, and the Panel determined that he had not

shown good cause for missing the hearing. The Panel concluded

that a new hearing would not be scheduled, but the appeal would

proceed.

3

¶ 6 Brito-Chavez then filed a brief that included over 100 pages of

photos and documents, generally asserting that there were

problems with the dump truck. Mountain States filed a response

brief, noting that the truck was relatively new and under warranty,

and that any alleged problems were not relevant to the issue of

whether Brito-Chavez was entitled to unemployment benefits.

¶ 7 The Panel issued an order on May 6, 2024, affirming the

hearing officer’s decision that Brito-Chavez was disqualified from

benefits under section 8-73-108(5)(e)(II). The Panel determined that

substantial evidence supported the hearing officer’s findings that

Brito-Chavez quit after Mountain States suspended him for his no-

call, no-show. The Panel found that the hearing officer properly

credited Thompson’s testimony that he gave Brito-Chavez several

warnings about tardiness because he was late more than once a

week, sometimes for more than an hour. The Panel affirmed the

hearing officer’s conclusions that Brito-Chavez quit due to

reasonable supervision.

¶ 8 The Panel also determined that the “numerous pages of

handwritten statements, copies of photos, photos, text messages,

and other documents” submitted on appeal would not be

4

considered because they were not presented at the hearing. § 8-74-

104(2), C.R.S. 2024 (the Panel’s review is restricted to the evidence

in the record before the hearing officer).

II. Discussion

¶ 9 Proceeding pro se on appeal, Brito-Chavez generally argues

that the condition of his dump truck was unsafe, that he was late to

work due to his son’s health condition, that Thompson addressed

him in an unprofessional manner, and that he did not quit his

employment. For the following reasons, we reject these

contentions.

A. Legal Principles and Standard of Review

¶ 10 We will uphold the Panel’s decision unless the findings of fact

do not support the decision or the decision is erroneous as a matter

of law. § 8-74-107(6)(c)-(d), C.R.S. 2024. We review de novo

ultimate conclusions of fact and ultimate legal conclusions.

Harbert v. Indus. Claim Appeals Off., 2012 COA 23, ¶¶ 8-9.

¶ 11 A claimant’s entitlement to benefits is determined by the

reason for the separation from employment, which is a matter to be

resolved by the trier of fact. Eckart v. Indus. Claim Appeals Off.,

775 P.2d 97, 99 (Colo. App. 1989). The trier of fact must evaluate

5

the totality of the evidence and determine the motivating factors in

the employee’s separation. Id.

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

read in light of the express legislative intent set forth in [section 8-

73-108(1)(a)] 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).

B. Analysis

¶ 13 Brito-Chavez alleged in his initial application for

unemployment benefits that he was discharged for refusing to drive

an unsafe truck. His employer disputed that contention, however,

and requested a hearing. After Brito-Chavez received notice of the

hearing, he failed to appear. The notice stated that in the case of a

nonappearance, “[i]f you are not the appealing party, the hearing

will proceed without you.”

¶ 14 Because Brito-Chavez didn’t submit documents for the

hearing, the hearing officer was limited to the evidence in the

record, which contained his initial unemployment application in

which he alleged the unsafe driving conditions. At the hearing,

however, Thompson testified that the truck was relatively new,

6

under warranty, and that Brito-Chavez did not know how to take

care of it, “nor did he want to learn.” The hearing officer accepted

that testimony. While Brito-Chavez then submitted over 100 pages

of documents to the Panel, the Panel correctly determined it could

not consider that evidence because it had not been presented to the

hearing officer. See § 8-74-104(2).

¶ 15 In Brito-Chavez’ s appeal, he states, as he did before the

Panel, that his aunt’s heart transplant caused him to forget to

submit his paperwork or register for the hearing. But when the

Panel asked him further questions about the times and dates of his

aunt’s surgery, he did not respond. The Panel therefore held that

he had not shown good cause for missing the hearing. And his

failure to submit documents for the hearing meant that the hearing

officer did not have them, which in turn meant the Panel could not

consider them under section 8-74-104(2). Though we sympathize

with Brito-Chavez’s situation, we discern no error in this

determination.

¶ 16 In this unemployment benefits proceeding, the ultimate

determination is whether Brito-Chavez was unemployed through no

fault of his own. See Cole, 964 P.2d at 618. In the unemployment

7

compensation context, “fault” is not necessarily related to

culpability, but only requires a volitional act or exercise of some

control or choice in circumstances leading to discharge from

employment such that a claimant can be said to be responsible for

termination. Richards v. Winter Park Recreational Ass’n, 919 P.2d

933, 934 (Colo. App. 1996). Acting with volition generally means

having the power or ability to choose and decide or to exercise some

control over the circumstances, as opposed to acting in a manner

that is “essentially involuntary” or “accidental.” Starr v. Indus.

Claim Appeals Off., 224 P.3d 1056, 1065 (Colo. App. 2009).

¶ 17 As the Panel recognized, the evidence may have been subject

to various inferences concerning the reason or reasons for Brito-

Chavez’s separation from employment. However, the hearing officer

weighed the available evidence and testimony and found the

employer’s testimony credible. We, like the Panel, may not reweigh

the evidence presented or disturb the hearing officer’s credibility

determinations. Hoskins v. Indus. Claim Appeals Off., 2014 COA

47, ¶ 10.

¶ 18 Brito-Chavez also argues that he was late to work due to his

son’s health condition and that Thompson treated him

8

unprofessionally. However, this evidence, like Brito-Chavez’s

documentation, wasn’t before the hearing officer, so the Panel

couldn’t consider it, and neither can we. See § 8-74-107(6) (setting

forth limited grounds on which we may overturn the Panel’s

decision).

¶ 19 Given the record evidence of Brito-Chavez’s attendance,

tardiness, and lack of communication, we discern no error in the

hearing officer’s conclusions that it was reasonable for Thompson

(1) to feel disrespected due to the no-call, no-show; (2) to suspend

Brito-Chavez for one day due to his “poor pattern of attendance”

and lack of communication; and (3) to assume Brito-Chavez had

quit when he walked out after threatening a physical fight. Thus,

we also discern no error with the hearing officer’s or the Panel’s

conclusion that Thompson’s supervision was objectively reasonable

and would not cause a reasonable person to quit. See Cole, 964

P.2d at 619 (holding that worker with poor attendance record who

abruptly quit after a confrontation with her supervisor was

responsible for her job separation).

¶ 20 For these reasons, we conclude that the hearing officer and

the Panel correctly determined that the proximate cause of the job

9

separation was Brito-Chavez’s choice to quit his job and that he is

disqualified from receiving unemployment benefits under section 8-

73-108(5)(e)(II).

III. Disposition

¶ 21 The Panel’s order is affirmed.

JUDGE FREYRE and JUDGE GROVE concur.

24CA0924 Brito-Chavez v ICAO 09-05-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0924
Industrial Claim Appeals Office of the State of Colorado
DD No. 5724-2024

Antonio Brito-Chavez,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Mountain States
Asphalt Paving Inc,

Respondents.

ORDER AFFIRMED

Division V
Opinion by JUDGE LUM
Freyre and Grove, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced September 5, 2024

Antonio Brito-Chavez, Pro Se

No Appearance for Industrial Claim Appeals Office of the State of Colorado

Dar Thompson, Authorized Representative, Commerce City, Colorado, for
Mountain States Asphalt Paving Inc
¶1 In this unemployment benefits case, Antonio Brito-Chavez

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

(the Panel) affirming a hearing officer’s decision disqualifying him

from receiving unemployment benefits after finding that he quit his

employment with Mountain States Asphalt Paving, Inc. (Mountain

States). We affirm.

I. Background

¶2 Mountain States employed Brito-Chavez as a dump truck

driver for approximately six months. After he was late to work

multiple times and then was a no-call, no-show, he showed up to

work, argued with his supervisor, and then walked off the premises.

Brito-Chavez filed for unemployment benefits, which were initially

granted. Mountain States contested the award of benefits and

applied for a hearing.

¶3 Brito-Chavez received notice of the hearing but did not appear.

His supervisor, Dar Thompson, testified at the hearing that, after a

no-call, no-show on December 6, 2023, Brito-Chavez showed up the

next day at the worksite, argued with him, and then threatened to

physically fight him. Thompson testified that he is seventy years

old and Brito-Chavez is half his age. Thompson testified that, while

1
“it almost came to fisticuffs,” Brito-Chavez eventually cursed and

walked away. Thompson concluded that Brito-Chavez “got real mad

and he quit.”

¶4 The hearing officer issued a decision on March 26, 2024,

concluding that Brito-Chavez resigned due to dissatisfaction with

his supervisor, disqualifying him from benefits under section 8-73-

108(5)(e)(II), C.R.S. 2024 (quitting employment because of

dissatisfaction with supervision not shown to be other than that

reasonably to be expected in the proper performance of work). The

hearing officer reversed the deputy’s initial award of benefits.

¶5 Brito-Chavez appealed the hearing officer’s decision to the

Panel, asserting that he had missed the hearing due to a family

emergency. The Panel emailed him questions, asking why he failed

to check in for the hearing in advance and inquiring in more detail

about the timing of the family emergency. Brito-Chavez did not

respond to the emails, and the Panel determined that he had not

shown good cause for missing the hearing. The Panel concluded

that a new hearing would not be scheduled, but the appeal would

proceed.

2
¶6 Brito-Chavez then filed a brief that included over 100 pages of

photos and documents, generally asserting that there were

problems with the dump truck. Mountain States filed a response

brief, noting that the truck was relatively new and under warranty,

and that any alleged problems were not relevant to the issue of

whether Brito-Chavez was entitled to unemployment benefits.

¶7 The Panel issued an order on May 6, 2024, affirming the

hearing officer’s decision that Brito-Chavez was disqualified from

benefits under section 8-73-108(5)(e)(II). The Panel determined that

substantial evidence supported the hearing officer’s findings that

Brito-Chavez quit after Mountain States suspended him for his no-

call, no-show. The Panel found that the hearing officer properly

credited Thompson’s testimony that he gave Brito-Chavez several

warnings about tardiness because he was late more than once a

week, sometimes for more than an hour. The Panel affirmed the

hearing officer’s conclusions that Brito-Chavez quit due to

reasonable supervision.

¶8 The Panel also determined that the “numerous pages of

handwritten statements, copies of photos, photos, text messages,

and other documents” submitted on appeal would not be

3
considered because they were not presented at the hearing. § 8-74-

104(2), C.R.S. 2024 (the Panel’s review is restricted to the evidence

in the record before the hearing officer).

II. Discussion

¶9 Proceeding pro se on appeal, Brito-Chavez generally argues

that the condition of his dump truck was unsafe, that he was late to

work due to his son’s health condition, that Thompson addressed

him in an unprofessional manner, and that he did not quit his

employment. For the following reasons, we reject these

contentions.

A. Legal Principles and Standard of Review

¶ 10 We will uphold the Panel’s decision unless the findings of fact

do not support the decision or the decision is erroneous as a matter

of law. § 8-74-107(6)(c)-(d), C.R.S. 2024. We review de novo

ultimate conclusions of fact and ultimate legal conclusions.

Harbert v. Indus. Claim Appeals Off., 2012 COA 23, ¶¶ 8-9.

¶ 11 A claimant’s entitlement to benefits is determined by the

reason for the separation from employment, which is a matter to be

resolved by the trier of fact. Eckart v. Indus. Claim Appeals Off.,

775 P.2d 97, 99 (Colo. App. 1989). The trier of fact must evaluate

4
the totality of the evidence and determine the motivating factors in

the employee’s separation. Id.

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

read in light of the express legislative intent set forth in [section 8-

73-108(1)(a)] 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).

B. Analysis

¶ 13 Brito-Chavez alleged in his initial application for

unemployment benefits that he was discharged for refusing to drive

an unsafe truck. His employer disputed that contention, however,

and requested a hearing. After Brito-Chavez received notice of the

hearing, he failed to appear. The notice stated that in the case of a

nonappearance, “[i]f you are not the appealing party, the hearing

will proceed without you.”

¶ 14 Because Brito-Chavez didn’t submit documents for the

hearing, the hearing officer was limited to the evidence in the

record, which contained his initial unemployment application in

which he alleged the unsafe driving conditions. At the hearing,

however, Thompson testified that the truck was relatively new,

5
under warranty, and that Brito-Chavez did not know how to take

care of it, “nor did he want to learn.” The hearing officer accepted

that testimony. While Brito-Chavez then submitted over 100 pages

of documents to the Panel, the Panel correctly determined it could

not consider that evidence because it had not been presented to the

hearing officer. See § 8-74-104(2).

¶ 15 In Brito-Chavez’ s appeal, he states, as he did before the

Panel, that his aunt’s heart transplant caused him to forget to

submit his paperwork or register for the hearing. But when the

Panel asked him further questions about the times and dates of his

aunt’s surgery, he did not respond. The Panel therefore held that

he had not shown good cause for missing the hearing. And his

failure to submit documents for the hearing meant that the hearing

officer did not have them, which in turn meant the Panel could not

consider them under section 8-74-104(2). Though we sympathize

with Brito-Chavez’s situation, we discern no error in this

determination.

¶ 16 In this unemployment benefits proceeding, the ultimate

determination is whether Brito-Chavez was unemployed through no

fault of his own. See Cole, 964 P.2d at 618. In the unemployment

6
compensation context, “fault” is not necessarily related to

culpability, but only requires a volitional act or exercise of some

control or choice in circumstances leading to discharge from

employment such that a claimant can be said to be responsible for

termination. Richards v. Winter Park Recreational Ass’n, 919 P.2d

933, 934 (Colo. App. 1996). Acting with volition generally means

having the power or ability to choose and decide or to exercise some

control over the circumstances, as opposed to acting in a manner

that is “essentially involuntary” or “accidental.” Starr v. Indus.

Claim Appeals Off., 224 P.3d 1056, 1065 (Colo. App. 2009).

¶ 17 As the Panel recognized, the evidence may have been subject

to various inferences concerning the reason or reasons for Brito-

Chavez’s separation from employment. However, the hearing officer

weighed the available evidence and testimony and found the

employer’s testimony credible. We, like the Panel, may not reweigh

the evidence presented or disturb the hearing officer’s credibility

determinations. Hoskins v. Indus. Claim Appeals Off., 2014 COA

47, ¶ 10.

¶ 18 Brito-Chavez also argues that he was late to work due to his

son’s health condition and that Thompson treated him

7
unprofessionally. However, this evidence, like Brito-Chavez’s

documentation, wasn’t before the hearing officer, so the Panel

couldn’t consider it, and neither can we. See § 8-74-107(6) (setting

forth limited grounds on which we may overturn the Panel’s

decision).

¶ 19 Given the record evidence of Brito-Chavez’s attendance,

tardiness, and lack of communication, we discern no error in the

hearing officer’s conclusions that it was reasonable for Thompson

(1) to feel disrespected due to the no-call, no-show; (2) to suspend

Brito-Chavez for one day due to his “poor pattern of attendance”

and lack of communication; and (3) to assume Brito-Chavez had

quit when he walked out after threatening a physical fight. Thus,

we also discern no error with the hearing officer’s or the Panel’s

conclusion that Thompson’s supervision was objectively reasonable

and would not cause a reasonable person to quit. See Cole, 964

P.2d at 619 (holding that worker with poor attendance record who

abruptly quit after a confrontation with her supervisor was

responsible for her job separation).

¶ 20 For these reasons, we conclude that the hearing officer and

the Panel correctly determined that the proximate cause of the job

8
separation was Brito-Chavez’s choice to quit his job and that he is

disqualified from receiving unemployment benefits under section 8-

73-108(5)(e)(II).

III. Disposition

¶ 21 The Panel’s order is affirmed.

JUDGE FREYRE and JUDGE GROVE concur.

9