Malczewski v. ICAO

24CA0727 Malczewski v ICAO 08-29-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0727

Industrial Claim Appeals Office of the State of Colorado

DD No. 2965-2024

Melissa Malczewski,

Petitioner,

v.

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

Department of Corrections 440001,

Respondents.

ORDER AFFIRMED

Division III

Opinion by JUDGE MOULTRIE

Dunn and Yun, JJ., concur

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

Announced August 29, 2024

Melissa Malczewski, Pro Se

No Appearance for Respondents

1

¶ 1 Melissa Malczewski seeks review of a final order of the

Industrial Claim Appeals Office (the Panel) disqualifying her from

receiving unemployment insurance benefits based on her job

separation from the Colorado Department of Corrections (CDOC).

We affirm the Panel’s order.

I. Background

¶ 2 Malczewski worked as a Correctional Officer I for the CDOC for

seven months in 2023, until the CDOC terminated her employment.

At all relevant times, Malczewski had a medical condition causing

blood loss, which she mitigated by routinely injecting herself with a

physician-prescribed vitamin B12 shot. The CDOC terminated

Malczewski’s employment after she brought a needle and syringe to

work to administer herself a B12 shot — without appropriately

documenting the item as required by CDOC policy — and later

losing the needle.

¶ 3 Malczewski applied to receive unemployment benefits from the

Division of Unemployment Insurance. After reviewing evidence

regarding the reason for Malczewski’s job separation, a hearing

officer adjudicated Malczewski disqualified from receiving benefits

under section 8-73-108(5)(e)(XX), C.R.S. 2024.

2

¶ 4 The Panel affirmed the hearing officer’s factual findings and

legal conclusions.

II. Discussion

A. Standard of Review

¶ 5 We may only set aside the Panel’s decision if the factual

findings are not supported by substantial evidence or related

reasonable inferences, if the factual findings do not support the

legal conclusion, or if the decision is erroneous as a matter of law.

§ 8-74-107(4), (6), C.R.S. 2024; Yotes, Inc. v. Indus. Claim Appeals

Off., 2013 COA 124, ¶ 10. 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).

B. Applicable Law

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

receiving benefits if her “failure to meet established job performance

or other defined standards” proximately caused her job separation.

To evaluate proximate cause, the hearing officer considers the

totality of the evidence and determines the motivating factors in the

3

employee’s separation. Eckart v. Indus. Claim Appeals Off., 775

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

¶ 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); § 8-73-108(1)(a). 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.” Cole,

964 P.2d at 618. A claimant’s responsibility or “fault” for her job

separation is an ultimate legal conclusion based on the established

findings of evidentiary fact. Id. at 618-19.

C. Proximate Cause

¶ 8 Malczewski argues the hearing officer erred in determining the

proximate cause of her discharge. We do not address other

potential reasons for the discharge, as Malczewski urges, because

substantial evidence in the record supports the hearing officer’s

findings. § 8-74-107(4); Rathburn, 566 P.2d at 373.

4

¶ 9 The evidence presented to the hearing officer included a

written description of Malczewski’s job duties, as set forth in a

performance improvement plan she received in August 2023. Those

duties included “maintain[ing]” the Trinidad Correctional Facility’s

“safety and security” by ensuring “the proper use of controlled

items, keys, tools, [and] equipment” and “enforc[ing] security

procedures and control[ling] contraband.” Her job description also

explicitly required “adherence to [the CDOC’s] Administrative

Regulations.”

¶ 10 Associate Warden David Sliger testified he terminated

Malczewski for violating a CDOC a regulation that “identifies

needles and sharps as . . . controlled item[s] which must be

accounted for,” as well as another regulation that prohibits

employees from engaging in activities that could jeopardize the

facility’s security or safety. Both Sliger and Malczewski testified

that Malczewski failed to declare the needle at the facility’s entrance

or complete an inventory sheet accounting for it as required, and

the needle was later lost inside the facility.

¶ 11 The hearing officer determined that the CDOC terminated

Malczewski “because she did not follow [CDOC] procedures.” In

5

doing so, the hearing officer found that “she brought a syringe and

needle into the prison facility to administer prescribed B12 shots to

herself” and “should have declared these items and an inventory

sheet should have been completed.” She then “lost the needle.”

The hearing officer also found that Malczewski “signed that she had

read and understood all policies and procedures” and the syringe

and needle “were considered dangerous contraband.”

¶ 12 Thus, there is substantial evidence to support the hearing

officer’s findings, and we may not alter the hearing officer’s findings

of fact if they are supported by the evidence. See Tilley v. Indus.

Claim Appeals Off., 924 P.2d 1173, 1177 (Colo. App. 1996).

D. Fault

¶ 13 Malczewski also appears to argue that the hearing officer erred

by finding her at fault for her job separation. We disagree.

¶ 14 Malczewski doesn’t dispute that she failed to follow CDOC

policies. But she contends that the evidence showed she lost

substantial blood on the date of the incident, rendering her

“confused” and “not in the right state of mind” when she “took the

syringe to work.” Construed liberally, her argument appears to

suggest she therefore lacked control over the circumstances

6

surrounding her discharge. See People v. Bergerud, 223 P.3d 686,

696-97 (Colo. 2010) (we construe pro se filings liberally, giving effect

to their substance rather than form).

¶ 15 Here, the hearing officer found that Malczewski had given

“herself a shot at home before leaving for her shift” and had “placed

the syringe, needle and bottle of B12 in her lunch box, which she

then took to work in case she needed to give herself another shot

while at work.” The officer also found, with record support, that

Malczewski should have “declared [the controlled] items,” but did

not. The officer concluded that Malczewski “exercised some choice

or control in the circumstances leading to the separation.”

¶ 16 Malczewski’s testimony regarding her confusion conflicts with

other evidence showing that she had control over her decision to

bring the syringe and needle to work. At the hearing, Malczewski

testified multiple times that she believed the needle and syringe

were allowed in the facility. She does not dispute that she brought

the needle and syringe to work, used them to administer a B12

shot, and then lost the needle.

¶ 17 Malczewski also testified that she had failed to read the

administrative regulations governing procedures for bringing

7

medically necessary needles to the facility, and therefore did not

know she was violating protocol. She further testified that, had she

been aware of the protocol, she would not have violated it. But the

record reveals that Malczewski had access to all relevant

regulations.

¶ 18 Because the hearing officer’s finding that Malczewski exercised

control over the circumstances of her job separation is supported by

the record, we won’t disturb it.

E. Other Factual Findings

¶ 19 Malczewski argues the hearing officer made several incorrect

factual findings. Specifically, she asserts that the hearing officer

made incorrect factual findings about (1) certain portions of her

testimony, (2) the length of employment of another employee, (3) the

timeframe in which she administered herself the injection while at

work, and (4) whether another employee failed to inventory the

needle.

¶ 20 Even accepting these assertions as true, substantial evidence

supports the hearing officer’s finding that Malczewski failed to

follow protocol when she brought the controlled items into the

facility without declaring them. This finding supports the hearing

8

officer’s legal conclusion that Malczewski’s failure to follow

established job standards proximately caused her job separation.

Thus, any errors in the court’s other factual findings are harmless.

C.A.R. 35(c) (“The appellate court may disregard any error or defect

not affecting the substantial rights of the parties.”).

F. The Panel Acted Within Its Powers in Declining to Remand for

the Hearing Officer to Consider Further Evidence

¶ 21 Malczewski also challenges the hearing officer’s decision to

exclude certain evidence during the hearing — specifically, (1) a

photograph Malczewski took allegedly showing the volume of blood

she hemorrhaged two days before the incident and (2) a doctor’s

note allegedly supporting Malczewski’s contention that she becomes

confused due to the blood loss her medical condition occasions. To

the extent Malczewski argues the Panel erred in failing to remand

her case to the hearing officer to consider that evidence, we

disagree.

¶ 22 The Panel has the authority to “affirm, modify, reverse, or set

aside” a hearing officer’s decision “on the basis of the evidence in

the record previously submitted in the case.” Dep’t of Labor &

Emp. Reg. 11.2.16, 7 Code Colo. Regs. 1101-2. Alternatively, the

9

Panel may remand a case for the hearing officer to consider further

evidence, but only if “there has been a compelling demonstration

that such evidence, if credited, would establish that a miscarriage of

justice occurred.” Id.

¶ 23 In this case, the Panel found Malczewski “was provided a fair

opportunity to present evidence in the scheduled hearing.” Thus, it

found “no basis” merited remanding the case to allow Malczewski to

present her excluded evidence. Regulation 11.2.16 authorized the

Panel to make this determination. See id. Malczewski does not

argue that insufficient factual findings or legal error invalidate this

determination, and we perceive none.

III. Disposition

¶ 24 We affirm the Panel’s order.

JUDGE DUNN and JUDGE YUN concur.