Kuhr v. ICAO

24CA1083 Kuhr v ICAO 10-31-2024

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1083
Industrial Claim Appeals Office of the State of Colorado
DD No. 32313-2023

Jeffrey Kuhr,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Mesa County,

Respondents.

ORDER AFFIRMED

Division VII
Opinion by JUDGE SCHUTZ
Tow and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e)
Announced October 31, 2024

Coleman Quigley & Foster, LLC, Isaiah Quigley, Stuart R. Foster, Grand
Junction, Colorado for Petitioner

No Appearance for Respondent Industrial Claim Appeals Office

Todd M. Starr, County Attorney, Grand Junction, Colorado, for Respondent
Mesa County
¶1 Jeffrey Kuhr seeks review of a final order of the Industrial

Claim Appeals Office (the Panel) disqualifying him from receiving

unemployment insurance benefits pursuant to section 8-73-

108(5)(e)(XX), C.R.S. 2024 (foreclosing benefits where a claimant’s

failure to meet established job performance or other defined

standards resulted in employment termination). We affirm the

Panel’s order.

I. Background

¶2 A clear recitation of the controlling facts requires

distinguishing among the following governmental entities: Mesa

County (County), the Board of County Commissioners for Mesa

County (BOCC), the Mesa County Public Health Department (Health

Department), and the Mesa County Board of Public Health (Board of

Public Health). We briefly address those distinctions:

• The County, acting through the BOCC, appoints the

members of the Board of Public Health. § 25-1-

508(2)(a)(I), C.R.S. 2024.

• The Board of Public Health appoints the Public Health

Director, who directs the Health Department. §§ 25-1-

508(5)(c)(I), -509(1)(a), C.R.S. 2024.

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• The Public Health Director serves at the pleasure of the

Board of Public Health. § 25-1-508(4)(a).

A. Employment Background

¶3 The following facts are undisputed. Between 2011 and 2023,

Kuhr served as the Public Health Director for the Health

Department. In 2022, the County Attorney retained an auditor to

investigate the Health Department’s hiring and spending processes.

The auditor determined the Health Department, and specifically

Kuhr, had deviated from the County’s protocols in various respects

on multiple occasions. On February 3, 2023, after reviewing the

auditor’s report (Auditor’s Report), the Board of Public Health

adopted a “Plan of Action” to improve the Health Department’s

processes. A few months later, on April 21, 2023, the Board of

Public Health approved a new employment contract (2023

Employment Contract) with Kuhr, for a term beginning May 1,

2023, and ending April 30, 2024.

¶4 The BOCC wrote to the Board of Public Health, explaining that

the Plan of Action failed to sufficiently address the Health

Department’s dysfunction and demanding Kuhr’s termination.

Shortly thereafter, four of the five members of the Board of Public

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Health resigned. The following day, the BOCC replaced those

members. A few days later, the Board of Public Health voted to

place Kuhr on administrative leave. Kuhr threatened legal action

against the County, and in short order, the BOCC, Board of Public

Health, and Kuhr executed a settlement and release agreement

(Settlement Agreement), whereby Kuhr agreed to accept a payment

in exchange for separating from his employment and releasing his

claims against the BOCC and the County.

¶5 Kuhr subsequently filed an application for benefits with the

Division of Unemployment Insurance (Division), which is the

subject of this appeal.

B. Procedural History

¶6 On October 30, 2023, a deputy for the Division approved

Kuhr’s claim for benefits. The Division mailed a copy of that

decision to the County, which timely appealed the deputy’s decision

and requested an evidentiary hearing on the proximate cause of

Kuhr’s employment separation.

¶7 After reviewing the evidence, the hearing officer issued an

order disqualifying Kuhr from receiving benefits because his

separation was proximately caused by his failure to meet

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established job performance standards, and because he exercised

control over the circumstances surrounding his separation.

Specifically, the hearing officer found that Kuhr repeatedly failed to

comply with the County’s financial and procurement policies, and

that, because he exercised control over his actions in connection

with these failures, he was “at fault” for the separation.

Accordingly, the hearing officer adjudicated Kuhr disqualified from

receiving benefits, per section 8-73-108(5)(e)(XX).

¶8 Kuhr appealed the hearing officer’s decision to the Panel. In

the context of that appeal, Kuhr argued that the hearing officer

erred as a matter of law by referencing the Auditor’s Report in her

proximate cause findings. He also argued that the hearing officer

erred by concluding that the County had been his employer. The

Panel affirmed the hearing officer’s order.

II. Analysis

¶9 On appeal, Kuhr argues that (1) the County was not an

“interested party” authorized to appeal the Division deputy’s

decision to the hearing officer; (2) the hearing officer erred by

relying on the Auditor’s Report to determine that Kuhr was

responsible for his separation (and the Panel subsequently erred by

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affirming those findings); and (3) the Settlement Agreement

precluded the County from challenging Kuhr’s benefits award.

None of these arguments establishes a basis for setting aside the

Panel’s order.

A. Standard of Review

¶ 10 As relevant here, under section 8-74-107(6), C.R.S. 2024, we

may only set aside the Panel’s decision if (1) the hearing officer’s

factual findings do not support the Panel’s legal conclusions; (2) the

Panel “acted without or in excess of its powers”; or (3) the decision

is erroneous as a matter of law. Id.; see also § 8-74-107(4); Yotes,

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

B. Interested Party

¶ 11 As Kuhr notes, section 8-74-103(1), C.R.S. 2024, authorizes

only “interested part[ies]” to appeal a Division deputy’s decision to

award or deny unemployment benefits. Kuhr argues that the

County could not have qualified as an “interested party” because it

was not his “employer.” We are not persuaded.

¶ 12 Contrary to Kuhr’s suggestion, whether the County qualified

as an “interested party” authorized to challenge the Division

deputy’s decision turns solely on that term’s definition under the

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Employment Security Act (Act), without reference to real-party-in-

interest principles or traditional standing principles. Those

principles generally apply to claimants, and the County is not a

claimant here. C.R.C.P. 17(a); 13A Charles Alan Wright & Arthur R.

Miller, Federal Practice and Procedure, § 3531 (3d ed. 1998).

¶ 13 Under section 8-70-103(17)(a), C.R.S. 2024, an “interested

party” to any benefits decision includes the claimant, the Division,

and “any employer who has complied with the reporting

requirements of the division with respect to wages or other

information regarding such individual.”

¶ 14 An “employer” includes an individual or organization who paid

a certain amount of wages to the claimant in a certain timeframe or

employed the claimant for “some portion of the day” for at least

twenty days over the course of twenty weeks (with each of the

twenty days falling in a different week). §§ 8-70-103(9), 113(1)(a)(II),

C.R.S. 2024.

¶ 15 The Division’s reporting requirements mandate, among other

things, that “employers” file quarterly reports identifying all wages

paid to employees (and the employees’ social security numbers).

Dep’t of Labor & Emp. Regs. 7.2.3, 7.2.4.

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¶ 16 The Division is responsible for identifying “interested parties”

“[u]pon [its] receipt of a claim.” § 8-74-102(1), C.R.S. 2024.

“Claims” under the Act include “valid initial claim(s)” and two types

of reopened claims. § 8-70-103(7), -111, 112, C.R.S. 2024.

Importantly, a “valid initial claim” only exists where a claimant has

established that he was paid a certain amount of wages from a

named employer in a certain timeframe. Id.; §§ 8-70-111, 8-73-

107(1)(e), C.R.S. 2024. A mere application requesting benefits is

not a “valid initial claim.” It only becomes such once the Division

deputy confirms the named employer actually paid the declared

wages by cross-referencing the application with the named

employer’s quarterly wage reports or other payroll information.

§§ 8-74-102(1), 8-70-103(7), 8-70-111(2)(a), 8-70-112(1)(a), C.R.S.

2024. Thus, the very existence of a viable unemployment benefits

claim1 is predicated on the Division first verifying the identity of the

employer who paid wages. Id.

1 Consistent with the Panel’s terminology, this opinion references

Kuhr’s “claim,” rather than his “valid initial claim.” As discussed,
supra, the former term subsumes the latter.

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¶ 17 Here, the record indicates Kuhr represented to the Division

that the County was his employer for purposes of establishing a

claim and that the Division confirmed that representation was

accurate. This is evidenced by Division records identifying Kuhr’s

application as a “claim.” Though the record does not contain

Kuhr’s initial application, it includes a Division-generated

document identifying the claim number as 2023-1, Kuhr as the

claimant, and the County as the employer.

¶ 18 “We presume the validity and regularity of administrative

proceedings . . . .” HCA-HealthONE LLC v. Colo. Dep’t of Labor &

Emp., 2020 COA 52, ¶ 39. Accordingly, we presume the Division

classified Kuhr’s application as a “claim” after verifying that the

County was Kuhr’s employer, per statutory protocol. Id.; §§ 8-74-

102(1), 8-70-103(7), 8-70-112.

¶ 19 Neither party contests that a “claim” exists here, and Kuhr

continues to assert that he has a “claim” for benefits. But the

Division’s verification of his application as a “claim” was necessarily

predicated on Kuhr’s representation that the County was his

“employer.” Indeed, at oral argument, Kuhr’s counsel

acknowledged that the County paid Kuhr’s wages. Accordingly, we

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conclude that Kuhr is judicially estopped from now arguing that the

County was not his “employer.” See Arko v. People, 183 P.3d 555,

560 (Colo. 2008). For both logic and equity reasons, Kuhr cannot

argue for benefits based on his “claim” against the County, while

simultaneously denying that the County employed him. See id.

One position precludes the other. Accordingly, we reject his

contention that the County was not an interested party authorized

to appeal the Division deputy’s decision.

¶ 20 Moreover, even if Kuhr were not estopped from contesting that

the County was his employer, his argument would fail. As the

appellant, Kuhr bears the burden of providing us a record

supporting his assertion that the County was not his employer, as

defined by the Act. See Schuster v. Zwicker, 659 P.2d 687, 690

(Colo. 1983) (“It is the obligation of the party asserting error in a

judgment to present a record that discloses that error, for a

judgment is presumed to be correct until the contrary affirmatively

appears.”). We note that sections 8-74-106 and 8-72-107, C.R.S.

2024, expressly allowed Kuhr reasonable access to the Division’s

records. And, though the statutory scheme tasks the Panel with

filing the record on appeal, C.A.R. 10(f)(2) authorized Kuhr to file a

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motion to supplement the record. We see no evidence that Kuhr

made any attempt to provide us a record sufficient to review the

asserted error. Accordingly, we presume the evidence supports the

hearing officer’s and Panel’s decisions. See Schuster, 659 P.2d at

690.

C. Whether the Hearing Officer Appropriately Referenced the
Auditor’s Report

¶ 21 Kuhr argues the incidents cited in the Auditor’s Report “did

not serve as any basis for his separation of employment,” and the

hearing officer thus erred in so finding. However, because

substantial evidence in the record supports the hearing officer’s

finding, we cannot set aside the Panel’s order affirming it.

Specifically, at the hearing, a County Administrator testified that

the “report and violations found . . . led to the termination

agreement.” This testimony supports the finding that incidents

identified in the Auditor’s Report proximately caused Kuhr’s

employment separation.

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¶ 22 Kuhr also argues that, in entering into the 2023 Employment

Contract, the Board of Public Health and/or the County2 waived the

right to terminate Kuhr based on incidents identified in the

Auditor’s Report. However, he points to no specific language in that

contract supporting his argument, nor does he cite any legal

authority for the notion that an employer that enters into a renewed

employment agreement irrefutably waives the right to terminate an

employee based on past conduct. Nor does he provide analysis in

support of his conclusion. Vallagio at Inverness Residential Condo.

Ass’n, Inc. v. Metro. Homes, Inc., 2017 CO 69, ¶¶ 39-40 (we do not

consider conclusory propositions devoid of legal citations or

analysis). We therefore reject the contention.

¶ 23 Kuhr then appears to invoke the doctrine of equitable estoppel

for the proposition that the existence of the 2023 Employment

Contract precluded the hearing officer’s finding that incidents

documented in the Auditor’s Report proximately caused Kuhr’s

employment separation. Again, Kuhr’s argument lacks legal

2 The 2023 Employment Contract lists Kuhr and the Health

Department as the parties thereto. Kuhr argues the Board of Public
Health, and perhaps the County, waived the right to terminate him
based on incidents the Auditor’s Report identified.

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support or development, and it is unclear which actor he believes is

subject to the doctrine. Thus, we cannot consider this argument.

Id. In short, we perceive no error in the Panel affirming the hearing

officer’s proximate cause finding.

D. Whether the Settlement Agreement Precluded the County from
Challenging Kuhr’s Benefits Award

¶ 24 Kuhr contends specific terms in the Settlement Agreement

precluded the County from challenging Kuhr’s entitlement to

benefits. The interpretation of a written contract presents a

question of law that we review de novo. See EnCana Oil & Gas

(USA), Inc. v. Miller, 2017 COA 112, ¶ 10. When interpreting a

contract, such as the Settlement Agreement, our primary task is to

give effect to the parties’ intent. Bledsoe Land Co. LLLP v. Forest Oil

Corp., 277 P.3d 838, 842 (Colo. App. 2011). We discern that intent

from the language of the instrument itself, giving the words therein

their plain and generally accepted meanings. Id.

¶ 25 Kuhr first points to a provision in the Settlement Agreement’s

recitals, articulating the parties’ intention “to resolve all potential

claims . . . that Mesa County may have against Kuhr[.]” It is

unclear why this provision would foreclose the County’s challenge

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to Kuhr’s entitlement to benefits because the challenge does not

constitute a legal claim. Again, Kuhr provides no legal analysis to

support his contention, and we decline to address it further. People

v. Wallin, 167 P.3d 183, 187 (Colo. App. 2007) (declining to address

perfunctory, conclusory arguments).

¶ 26 Next, Kuhr highlights a Settlement Agreement provision that

neither Kuhr nor the County admit any wrongdoing. This provision

does not state that the County agrees to forego challenging Kuhr’s

entitlement to benefits, and Kuhr fails to assist our understanding

via legal analysis. Perceiving no obvious basis for this argument,

and lacking analysis to guide our review, we decline to further

consider it. Id.

¶ 27 Finally, Kuhr points to a provision stating, “Kuhr does not

release the right to receive unemployment benefits or vested

pension benefits if Kuhr is entitled to either or both.” By its plain

language, this provision concerns benefits to which Kuhr “is

entitled.” It does not guarantee his entitlement to benefits or

otherwise enlarge his rights under the Act. Nor does it constrict the

County’s rights under the Act, including the right to challenge

Kuhr’s entitlement to benefits. We perceive no ambiguity in this

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provision, and we must interpret it as written rather than adding

terms the parties did not include. See SI Prop. E., Inc. v. Simpson,

938 P.2d 168, 173 (Colo. 1997).

III. Disposition

¶ 28 The Panel’s order is affirmed.

JUDGE TOW and JUDGE PAWAR concur.

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