Gardner v. ICAO

24CA1622 Gardner v ICAO 12-26-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1622
Industrial Claim Appeals Office of the State of Colorado
DD No. 5553-2024

Jillian Gardner,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and RB American
Group LLC,

Respondents.

ORDER AFFIRMED

Division VI
Opinion by JUDGE MOULTRIE
Welling and Brown, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced December 26, 2024

Jullian Gardner, Pro Se

No Appearance for Respondents
¶1 In this unemployment benefits case, claimant, Jillian Gardner,

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

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

Gardner was ineligible for unemployment benefits under section 8-

73-108(5)(e)(XX), C.R.S. 2024, because she was at fault for the

termination. We affirm the Panel’s order.

I. Background

¶2 Gardner was the general manager of a fast-food restaurant for

almost five years. She was terminated after she approved seventy-

two hours of paid jury duty leave for an employee who did not

actually have jury duty, in violation of the company’s policy

regarding jury duty leave. Gardner applied for unemployment

benefits and a deputy for the Division of Unemployment Insurance

determined that Gardner was ineligible for unemployment benefits

pursuant to section 8-73-108(5)(e)(XX) because she was responsible

for the separation from her employment by not complying with the

employer’s expectations or ru1es for job performance.

¶3 Gardner appealed the deputy’s decision. At the hearing, the

employer’s representative testified that: (1) Gardner was terminated

for violating company policies by approving an employee’s request

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for jury duty leave when the employee did not actually have jury

duty and approving an amount in excess of the company’s policy;

(2) when the jury duty issue was brought to Gardner’s attention,

Gardner said that she had made a mistake; (3) the company

handbook detailed the jury duty leave policy, and Gardner received

that handbook when she was hired and signed an

acknowledgement at that time indicating she received it; and

(4) Gardner had been on a performance plan and two months after

completion of that performance plan, Gardner signed

documentation indicating that any further violation of the

company’s policies could lead to termination.

¶4 Gardner, in contrast, testified that she was informed of the

issue with the jury duty leave request on the day she was

terminated, that she told her supervisor that she did not remember

approving a jury duty leave request, and that if she did do it, it was

a mistake. She also testified that she probably thought she was

just approving unpaid time off and was not aware she was doing

anything wrong.

¶5 The hearing officer affirmed the deputy’s decision, finding that

Gardner knew she was expected to follow the company’s policies

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and that she improperly approved jury duty leave for a worker who

was not on jury duty in violation of the company’s policy. Thus, the

hearing officer concluded that Gardner was disqualified from

receiving unemployment benefits under section 8-73-108(5)(e)(XX)

for failing to meet established job performance standards.

¶6 Gardner appealed the hearing officer’s decision, and on review,

the Panel affirmed the hearing officer’s determination.

II. Standard of Review and Applicable Law

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

the findings of fact do not 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.

¶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 a hearing officer’s resolution of

conflicting testimony when the credited testimony was not

incredible as a matter of law). Rather, we must accept a hearing

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officer’s factual findings that are supported by substantial evidence

or reasonable inferences drawn from that evidence. See Yotes, Inc.

v. Indus. Claim Appeals Off., 2013 COA 124, ¶ 10; Pero v. Indus.

Claim Appeals Off., 46 P.3d 484, 486 (Colo. App. 2002). 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, 1177 (Colo. App. 1996). In making those determinations, the

hearing officer is not required to address specific evidence or

testimony that the hearing officer does not find persuasive or make

specific credibility determinations. Id.

¶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” does not necessarily require culpability but

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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

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 they were hired and which they knew was

expected of them).

III. Discussion

¶ 12 On appeal, Gardner asserts that the Panel’s findings are not

supported by the evidence. Specifically, she argues that the

employer did not present evidence of her guilt and that she did not

recall approving the jury duty leave, but if she did, she thought she

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was only approving unpaid time off. After reviewing the record

evidence and applying our standard of review, we perceive no basis

to reverse the Panel’s order affirming the hearing officer’s decision.

¶ 13 The hearing officer found that Gardner approved vacation

leave for an employee who had only worked for the company for

approximately six months because the employer encouraged

managers to approve vacation leave to keep employees happy. And,

while that employee was still on vacation leave, they submitted a

request for nearly two weeks of jury duty leave. Without verifying

whether the employee had jury duty, Gardner approved that

request at full pay. However, the employer’s policy, as described in

its handbook, only allowed for up to three days of paid jury duty

leave at a reduced pay rate. The employer terminated Gardner

because she approved that employee’s jury duty leave in violation of

the company’s policy.

¶ 14 The hearing officer was persuaded that Gardner, not someone

else, approved that employee’s jury duty leave and found that by

approving that leave without referencing the handbook, Gardner

failed to follow the company’s policies. And, because intent is not

necessary for a disqualification under section 8-73-108(5)(3)(XX) —

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only a volitional act — the hearing officer concluded that Gardner

failed to meet established job performance standards, and thus,

was disqualified from receiving unemployment benefits under

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

¶ 15 On review, the Panel noted that Gardner disputed the

employer’s testimony and the hearing officer’s factual findings. But

because the hearing officer is solely responsible for weighing the

evidence, assessing the credibility of witnesses, and resolving

conflicts in the evidence, the Panel determined that it could not

alter the hearing officer’s findings. The evidence supported the

hearing officer’s determination that the employer had terminated

Gardner for violating company policy by wrongfully approving the

jury duty leave request. Thus, the Panel concluded that Gardner

was at fault for the termination under section 8-3-108(5)(e)(XX) and

affirmed the hearing officer’s decision.

¶ 16 Gardner asserts that the Panel erred by affirming the hearing

officer’s determination because the evidence at the hearing

contradicted the hearing officer’s findings. Specifically, she argues

that the employer did not present any proof that she had read and

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signed the employee handbook or that she had the authority to

approve payments for leave requests. We aren’t persuaded.

¶ 17 The hearing officer’s finding that Gardner was at fault for her

termination because she violated company policies with regard to

approving a jury duty leave request in excess of what the company

allowed is supported by substantial evidence and, therefore, is

binding on review. See Pero, 46 P.3d at 486. The employer’s

representative testified that Gardner (1) signed the employee

handbook; (2) approved the jury duty leave request in violation of

the company’s policy as reflected in the handbook; and (3) admitted

to making a mistake by approving the jury duty leave. Because

fault requires only a volitional act, not intent, the record supports

the hearing officer’s determination that Gardner was disqualified

from unemployment benefits under section 8-73-108(5)(e)(XX). See

Richards, 919 P.2d at 935.

¶ 18 To the extent Gardner presented conflicting testimony at the

hearing, that is not a basis for reversing the hearing officer’s

decision because the hearing officer is responsible for making

credibility determinations and weighing the evidence. See § 8-74-

107(4); see also Yotes, ¶ 10. Thus, contrary to Gardner’s claim on

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appeal, the absence of written proof that Gardner signed the

company handbook and was aware of the policy regarding jury duty

leave does not undermine the hearing officer’s decision. The

employer’s representative testified to the operative facts; and, in

determining that Gardner was at fault for the termination, the

hearing officer found the employer’s representative’s testimony

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

¶ 19 Accordingly, because the Panel was required to accept the

hearing officer’s credibility determinations and factual findings on

appeal, the Panel properly upheld the hearing officer’s

determination that Gardner 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).

IV. Disposition

¶ 20 We affirm the Panel’s order.

JUDGE WELLING and JUDGE BROWN concur.

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