Lawley v. Department of Higher Education

proposed will declaration that alterations first obtains declaration of a court damage owner. If had damage the benefitted Club such alterations will cause no sought remedy, engaging than rather benefitted owner. Such a determination self-help, might right won the to alter have should be made with reference to the Re- upon the ditch easement the court doctrine, statement as consistent with Brown changes comported the Re- Accordingly, judgment and Weeks. with statement rule. part the court of affirmed part. reversed We remand this case first

Accordingly, to resolve the issues before to determine whether alteration Club's of the us, we the trial direct court first to determine easement was reasonable and otherwise sat- the alterations to the ditch cause (Third) isfied criteria of Restatement damage In under the Restatement test. (Servitudes) 4.8(8) Property (2000); name- determination, making that the trial court ly, change significantly does not may rely upon testimony may previous or utility easement, lessen the of the increase request permit testimony additional within easement, the burdens on the owner of the its discretion. If the answer is that purpose frustrate the for which the easement damage (taking alterations do cause to Ranch If was created. the alteration does not meet into account maintenance water as well as test, the court must order restoration. benefits), rights then the trial court must this Further, Ranch is entitled to an order allow- order restoration of the ditch easement to its maintain, ing inspect, operate, it to and re- original If course. the answer is that Club's structure, pair the ditch easement and water damage, alterations do not cause then the irrespective of the allocation of costs and may place. alterations remain in Because we might part burdens of maintenance that form only today declaratory have identified the equitable relief. judgment action as an avenue for burdened legitimately estate owners that believe the harm,

anticipated changes will work no

permit attempt prove Club this case damage.

that Ranch has incurred no clearly disapprove

nonetheless of Club's self-

help approach similarly in this case and dis-

approve any unilateral alterations bur- dened estate owners in the future. Kathryn L. LAWLEY Colorado State sum, holding pur this serves two Board, Petitioners, poses, precedent. both line with Colorado First, easements, parties seeking to alter who cannot secure the consent of the other DEPARTMENT OF HIGHER EDU estate, may permission address the courts for CATION and Board of Trustees of Second, in line with the Restatement test. Colorado, of Northern Uni party unilaterally when a alters an easement versity Colorado, Respon of Northern without the court's or the other estate own dents. permission, apply er's a court will still No. 00SC473. legitimacy Restatement test to evaluate the alteration, impose equita but also Colorado, Supreme Court legal ble and remedies to redress the tres En Banc. pass. 3, Dec. 2001.

VIL Accordingly, question we answer the first by holding

on certiorari the owner of

property burdened a ditch easement has right

no to move or alter the with- easement

out consent of the benefitted owner unless he (University). The

ty of Northern Colorado adopted the find Personnel Board's Law ings made an Administrative of fact (ALJ) evidentiary hearing re Judge in an Lawley's appeal to the Person sulting from 1; however, rejected the ALJ's nel Board The ALJ concluded: conclusions of law.2 Lawley's position abolishing the action contrary to arbitrary, capricious, or was not law; did rule gender. The the basis of not discriminate on conclusions of law Board reversed the ALJ's University's action abol and ruled that arbitrary Lawley's position was and ishing gender discrimina capricious and constituted tion. must first resolve

We ultimate con was bound the ALJ's Board University's actions were not clusion that contrary to rule or arbitrary, capricious, or University that the did law and its conclusion Next, against Lawley. we not discriminate appeals the court of must decide whether decision, when, considering erred concluded, fairly persons and it "Reasonable honestly considering findings and evi P.C., Denver, CO, Attorney Kelly, Nora V. contrary reach a conclusion." dence must Kathryn Lawley. L. for Petitioner Educ., Higher Lawley Dep't No. v. General, Salazar, Attorney Denise De- Ken 6, 98CA1912, (Colo.App.Apr. slip op. at 11 General, Forest, Attorney Business Assistant 2000). of the Board's We find that both Denver, CO, Attorneys for Licensing, and University discrimi conclusions-that Board. Colorado State Personnel Petitioner against Lawley and that its action was nated Salazar, General, Attorney Susan J. Ken con capricious-are ultimate Trout, General, Regulato- Attorney Assistant Therefore, fact. the Board was clusions of Section, Denver, CO, ry Employment Law judgment its own for entitled to substitute Attorneys Respondents. for regarding both conclu the ALJ's light of our recent decision sions. Opinion delivered the of the Justice RICE Bodaghi Department Natural Re- v. Court. (Colo.2000), sowrces, we also 995 P.2d 288 appeals court of erred unpub- conclude that granted certiorari to review Ap- ruled, Court of opinion considering only por lished Colorado after when record, a decision of the Colora- peals that reversed the evidence from the tion of (Board) facts, sup ... directing without more do not "[these do State Personnel pre was a port a conclusion that the action Kathryn Lawley be reinstated as the Lawley, No. Parking text discrimination." Director of Services Universi- (2001) distinguishes between "evidentia- appeal, to the 7 C.R.S. 1. On the matter was first referred fact," Rights ry Civil Division which issued Colorado facts" and "ultimate conclusions Lawley probable cause. then re- of no encompasses of law" later both "conclusions hearing quested before Board. question(s] of law and fact." See and "mixed McCroskey, Bd. Med. State Exam'rs the ALJ and the Board referred to the 2. Both (Colo.1994). as "conclusions law." ALJ's conclusions However, 24-4-105(15)(b), we note thai section 98CA1912, slip op. at 10. We hold that the what they prior restructuring; were to the record contains sufficient evidence to University essential services of the should not be affected. the Personnel Board's ultimate conclusion of University fact was motivated The Division of Finance-and Administra gender Lawley's position. when it abolished (Division), tion parking which includes the ruling We also hold that the Board's that the unit, was asked to reduce statefunded sal University arbitrarily capriciously acted $40,000. aries In order to meet Accordingly, is warranted the record. required reductions, University cost reverse the court of and reinstate the Parking position, abolished the Director order of the Board. reassigned Lawley's duties to the Police Chief, position and created a new to assist

FACTS administering parking the Police Chief with Parking op Assigning served as Director of Ser parking ser erations.5 University Campus vices of Northern Colorado vices duties to the Chief of Police from until pay June 1988 June when the approximate allowed the $40,000 position ly At salary abolished.3 the time the of the Chiefs out of position, Lawley's abolished the revenues, parking entirely rather than $67,680. salary Although state-appropriated administra from funds as before. tively located within the Police The new was classified as an Ad Department, parking the unit Program Specialist services is self- ministrative with a sal $39,600 ary and was filled Mike through funded revenue sources of such as fees, decals, Rose, parking the sale of meter and previous position whose with a com tenure, space During Lawley's Parking parable salary fees. had been eliminated. The generated $750,000 previous post Services about of revenue put elimination of Rose's had operated budget surplus. could, and position with a Law- in Rose a where he under ley's salary paid auxiliary rules, University job was out of fund take the of another generated parking University employee, from revenues. Darrell Johnson. Therefore, by creating position a new for 1996-97, year University In fiscal the ex prevented Rose the Johnson University perienced in a decline enrollment for the being job. from forced out of his Chief of year. third consecutive academic Because of Campus Police Terence Urista testified (The Taxpayer's Rights) the Bill of TABOR that Assistant to the Vice-President amendment,4 passed which in the Administration Robert Hetzel told him drop in student enrollment affected the preventing being Johnson from funding University amount of the received bumped job out of his was one of the rea legislature. University's from the state position sons that the had creat new been president University concluded that the ed. required spending would be au to reduce $159,607 decision, thority Hetzel, making partici- for in salaries in order to In who budget pated developing budget in balance for 1997-98. The Uni for the Divi- versity following objec determined that sion of Finance and Administration and the Services, imple Auxiliary tives should be taken into account in Division of testified that (1) menting any cost-saving plan: existing management one of the factors considered retained; employees employee history previous should be was the of internal redistrib- remain salaries should commensurate with utions within the Police services Division. X, rely solely findings 3. We do not on the of fact 4. Colo. Const. art. ALJ, made but rather review the record to determine whether substantial evidence exists on hiring place 5. Because a freeze was in at the the record to the conclusions of the recommended to the Division University, Comm'n, agency. Lassner v. Civil Serv. Cf. University's Hiring Freeze Committee that a new 257, 259, Colo. 1088-89 position approved provide be to the Police De (construing predecessor delineating statute partment Parking and Services with administra appellate power reviewing extent of court's in support. tive presented hearing). evidence at an administrative actions, University's As a result affected redistributions had not been rights under Lawley exercised her retention addition, years. the Divi- prior three salary Lawley's exceeded the State found that rules and was sion Personnel Board III a Police comparable positions into a as Officer moved that of individuals University Department. This Police It also found similar institutions. Lawley posi- the new was a demotion Lawley salary as University paid the same Director at Colorado tion was classified Parking pay grade. Services at a lower response Lawley grievance an en- and University, an institution with filed State salary University. promoted How- to Lieutenant with that of the rollment twice $60,060 swing shift ever, a less desirable not conduct a formal and the Division did Moreover, in- work schedule as Director. survey. Hetzel did not schedule than her salary salary information informal clude the Lawley appealed actions memorandum, explained the restruc- Board, alleging discrimina- unlawful Hayzlett, Director of turing, to Dennis arbitrary capricious action. tion and and Services, though Hetzel testi- even decision, denying initial The ALJ issued an salary comparison was a crucial fied that the concluding that grounds and relief on both Testimony analysis. from the part of his University not discriminate did Morrell, Students, and Dean of Jean Schober arbitrarily, capri- act and did not expressed indicates that Hetzel Chief Urista clously, contrary law. The Board re- Lawley's salary. repeated about concern re- initial decision and the ALJ's viewed Furthermore, had conducted it, finding both discrimination versed Lawley's position in 1995 to job audit on capricious ac- and responsibility job level of review her appeal, the court of re- tion. On salary accordingly. and set her No functions decision, reasoning that the Board's versed job pursuant conducted formal audit was fairly honestly persons "[rleasonable position. plan to abolish her findings evidence must considering the contrary Lawley, a conclusion." No. reach days prior to the effective date of Two 98CA1912, slip op. 11. Urista,6 restructuring, who had not Chief abolishing Lawley's po about been consulted

sition, restructuring alternative offered an ANALYSIS proposal. proposed that most Chief Urista presents fairly a narrow issue.7 This case budgetary savings be made with of the could First, whether the Board we must determine abolishing Lawley's position. The Uni out entitled to substitute its own conclusions change versity plans not after receiv did Next, analyze we must for those of the ALJ. ing proposal. alternative the Police Chief's appeals erred when the court of

Moreover, that a decided that the Board abused its discretion Chief Urista testified concluding: dis regarding the Director memo the abolition of gen based on her Parking position sent from Het- criminated Services der; to that the zel to Vice President of Administration Ste- arbitrary and position. Lawley's position was misrepresented his The abolish ven Garcia stated, testified, provide capricious. We first a brief introduc and Hetzel that Chief memo recommended that the cre- personnel system in order to Urista tion to the state III in re- ate a new Officer analyze relationship between the better Police appro Parking and to set out the "reorganization Board and its ALJ sponse to testified that he ree- Services." Chief Urista priate of review for the Board's standard decision. review of the ALJ's position. I level ommended an Administrator Court, Supreme Lawley's applicable supervisor decisions of the 6. Urista was when she factfinder, Parking as the Director of Services. it reversed the served and acted as a when findings ultimate of fact of discrimina- Board's granted following on the issue: 7. certiorari capricious action. tion and ques- the court of decided Whether way not in accord with tion of substance in 1245 findings evidentiary A. to the unless such fact are Introduction State contrary weight System to the of the evidence. 24-4-105(15)(b), § personnel system is established 7 C.R.S. (2091). The state XII, 18, 14, by Article sections and 15 of 24-4-105(15)(b) clearly Section legislatively de- Constitution and is Colorado states, ruled, previously and we have that the -615, fined sections 24-50-101 to 7 C.R.S. authority Personnel Board's to review and (2001). Board is a con- The State Personnel finding depends set aside an on ALJ's wheth stitutionally agency five created state with finding "evidentiary" er the is one of § art. XII members. Colo. Const. "ultimate" fact. Bd. Med. State Exam'rs may employ administrative law The (Colo. McCroskey, 880 P.2d 1193 judges, support personnel, as well as other 1994). review, may On the Board not set § carry under state law. 24-50- out its duties evidentiary aside an fact made an ALJ (2001). 108(7), authority 7 C.R.S. contrary weight unless it is to the judge fundamentally administrative law 24-4-105(15)(b); § McCroskey, evidence. 880 authority. grounded in the Board's Section However, P.2d at 1193. the Board can sub may provides: 24-50-189 "The board autho- judgment own stitute its for the ALJ's deci judges rize administrative law conduct respect sion with to an ultimate conclusionof hearings any jurisdic- on matter within the long fact as has a upon tion of the board such conditions and reasonable basis law. Lee v. State Bd. of terms as the board determine and sub- (Colo. Exam'rs, Dental 654 844 24-50-108(7) ject provisions to the of section 1982). 24-50-1839, § and article 4 of this title." Although the distinction between eviden- (2001). Moreover, C.R.S. section 24-50- tiary facts and ultimate of fact conclusions 125.4(4) establishes that cases where "an clear, always evidentiary generally facts judge hearing law administrative conducts include the detailed factual or historical find- board," party on behalf of the who seeks to ings legal which a on determination rests. "modify ap- initial decision" must file an MeCroskey, 880 P.2d at 1198. Ultimate con- 24-50-1254(4), peal with the board. fact, hand, clusions of on the other involve (2001). C.R.S. law, ques- conclusions of or at least mixed territorial jurisdiction.8 ageney As a state with statewide fact, tions of law and and often settle the gov the Board's actions are rights parties. and liabilities of the Id. erned the State Administrative Procedure Act, -108, sections 244-101 CRS. B. The Not Was (2001). Thus, the re Personnel Board must by Bound the ALJ's Ultimate view the decision under standards set forth of Fact Conclusions (2001). 24-4-105(15)(b), in section 7 C.R.S. 24-4-105(15)(b) Section of the Act sets forth above, As we set out section 24-4- appropriate scope of review to be em 105(15)(b), 24-4-106(7), not sets forth the by ployed reviewing the Board when an employed appropriate scope of review to be ALJ's decision: reviewing the Board when an ALJ's deci fact, Thus, findings evidentiary University's argument, The of as distin- sion. on 24-4-106(7) fact, court, guished appeal from ultimate of to this that section conclusions applies to the Board's review of the ALJ's judge made the administrative law or hearing officershall not be set aside decision mistakes the standard of review agency judicial for the on review of the initial decision review of Board action stan provides appeal 8. Section 24-4-107 that the State Ad- the decision of the board to the court applies every agen- days ministrative Procedure Act forty-five within in accordance with cy having juris- of the state statewide territorial 24-4-106(11)." 24-50-125.4(3), § section diction, "specific unless the act conflicts with a Thus, (2001). delineating C.R.S. the article statutory provision relating specific agency." to a responsibilities parameters per- and of the state 24-4-107, (2001). case, § 7 C.R.S. sec- this system specifically State Ad- sonnel refers to the 24-50-125.4(3), outlining tion in the article ministrative Procedure Act. states, system, "Any may personnel party state infer the ultimate fact of trier of fact applied the Board reconsid dard to be when discrimination."). Moreover, the intentional initial decision.9 ers an ALJ's the distinction be misconstrues determination, Here, making evidentiary facts and ultimate conclu tween facts, in several historical Board considered "the Board's arguing fact sions of (1) following: that Hetzel failed cluding the clearly improper of the ALJ is reversal Lawley either Chief Urista or to confer with on credibili usurpation of the ALJ's decision Law- formulating proposal his to abolish ty, something reviewing cannot tribunal (2) question ley's position; that a existed do." accurately Hetzel communicated to whether suggestion to the alternative plaintiff has Chief Urista's

A determination of whether (8) President; that the failed proof in Vice the burden of a discrimination met counter-proposal, to consider Chief Urista's analysis historical requires an of the case accomplish would light applicable which the Chief believed of the case in facts eliminating necessary savings without an ulti- law in order to make discrimination (4) singled out Lawley's position; that Hetzel mate conclusion. determination Lawley made too because he believed she complainant has met the burden money; never much proof controls the outcome of the discrimi- salary. These evidentia- rights to reduce her and liabili- asked nation claim settles findings ry the detailed historical on parties. facts are ties of the fact the Board's ultimate conclusion of Moreover, Supreme the United States University "targeted [Lawley's] job that the Court, delineating analytical frame another, male, job in order the save the claims, specifically work for discrimination (R. III, 410), p. employee," at v. rests. to a of intentional discrimina refers Therefore, the Board was entitled to substi question of ultimate fact. St. tion as judgment for the ALJ's decision tute its own Hicks, Mary's Honor 509 U.S. Cir. regard to ultimate conclusionof fact with 511, 113 125 L.Ed.2d 407 S.Ct. University discriminated ("The put factfinder's disbelief of the reasons Lawley.10 if (particularly defendant dis forward accompanied by suspicion men The Board's conclusion that the Universi- belief arbitrary capricious ty's dacity) may, together with the elements of action was case, fact. Like the prima inten also an ultimate conclusion of facie suffice to show discrimination, Thus, rejection finding of this too fixes the tional discrimination. "rights parties." The permit the and liabilities of the proffered defendant's reasons will by any party. portions thereof as be cited 24-4-106(7) 9. Section provides: error, the court no it shall affirm the review, In all cases under the court shall deter- If finds interpret questions agency agency ac- all of law and action. If it finds that the mine statutory provisions in- constitutional a denial of stat- tion is capricious, right, utory right, contrary to constitutional apply interpretation to volved and shall such power, privilege, immunity, in excess of duly the facts found or established. statutory jurisdiction, authority, purposes, or 24-4-106(7), (2001). 7 C.R.S. limitations, in accord with the procedures procedural or limitations of this article or oth- 10. discretion to determine whether an em- If the law, clearly by an abuse or required erwise employee ap- ployer discriminated an or discretion, unwarranted exercise of based Board, plicant employees is removed from the upon findings clearly of fact that are erroneous applicants subject varying will be deci- record, unsupported on the substan- whole deci- sions different ALJs. This will result in considered as tial evidence when the record is though uniform, that are not the facts sions even whole, law, a or then the otherwise contrary may McCroskey, 880 P.2d at 1196 be similar. Cf. court shall hold unlawful and set aside (ruling removing the discretion to determine that agency and shall action restrain enforce- prac- generally accepted of standard medical review, compel under ment of the order or rule in different tice from the Board would result any agency action to be taken which has been ALJs, interpretations by resulting individual in unlawfully unduly delayed, withheld or re- liability discipline becoming wholly physician for proceedings, mand the case for further dependent upon the case is the ALJ to whom may appropriate. such other relief as be afford determinations, making foregoing assigned). or court shall review the whole record such

1247 supports evi- its conclusion on detailed Personnel Board's conclusion Board based that, including "Respondent targeted Complainant's dentiary findings, the fact factual another, male, job job in University not confer with the order to save the that did (R. 410.) III, employee." Campus making p. analy in its deci- at v. Our Police Chief sion; guided by analytical question existed as to whether sis is framework we that a President of Admin- the Assistant the Vice approved in Rights Colorado Civil Com (Colo. Tires, Big accurately communicated the Police mission v. O 940 P.2d 397 istration 1997) President; governs in Bodaght, and that and clarified Chief's idea to the Vice discriminationlaw Colorado. failed to consider the Police proposal. These historical Chief's alternative Employment a. support conclusion Colorado

facts the Board's ultimate arbitrarily of fact that the acted Discrimination Law capriciously abolishing Lawley's posi- adopted This court has the United States Thus, tion. we conclude that the was Supreme analysis Court's set forth that not bound the ALJ's determination Green, Douglas Corp. McDonnell v. 411 U.S. arbitrary or action was not 792, 1817, (1973) 93 S.Ct. 36 L.Ed.2d 668 for capricious. analyzing employment claims of discrimina Tires, Big tion. O 940 P.2d at 400. Howev C. of Review for Judicial Standard er, language we have modified the Review of the Board's Decision Douglas analytical McDonnell framework in reviewing A court reverse the order to "accommodate various kinds of em agency if decision of an administrative ployment decisions and various forms of disc Id,. agency arbitrarily court that finds acted rimination.12 capriciously, un made a decision that prove In order to intentional discrimi record, supported by erroneously inter 24-34-402, nation under 7 section CRS. law, preted authority. or exceeded its (2001) establish, plaintiff by prepon a must a (2001)1 24-4-106(7), 1; § 7 C.R.S8. McClellan evidence, prima derance of the a facie case of (Colo.1995). Thus, Meyer, v. 900 P.2d (2001). 24-84-402, 7 C.R.S. discrimination. we must next whether the court of consider prima The factors of a facie case of intention ruled, appeals only considering erred when it (1) complain al are: discrimination record, portion a of the evidence from the (2) class; belongs protected ant to a that the more, facts, give do "[these without complainant qualified position; for the rise to an inference that the decisions were complainant an that the suffered adverse they capricious, do nor employment despite qualifica his pretext the action conclusion tions; gave the cireumstances 98CA1912, Lawley, slip discrimination." No. rise to inference of unlawful discrimina op. at 10. Tires, Big (citing tion. 940 P.2d at 400 O Burdine, Dep't Cmty. v. Texas Affairs Lawley's 1. Discrimination Claim 248, 253, 67 L.Ed.2d 207 U.S. S.Ct. appeals, light court of of our (1981)). Bodaghi Department recent decision Douglas Resources, Under the McDonnell (Colo.2000), Natural 995 P.2d 288 only plaintiff considering adopted, erred as a matter of law framework we onee the es portion prima of the evidence from the record facie case of intentional tablishes whether, discrimination, analyzing presumption without when the record he has created a whole, employer unlawfully is considered as a substantial evidence discriminated Tires, Big language 11. The court of reviewed the Board's As we noted in O 24-4-106(11), pursuant decision 7 Douglas specifically to section is the McDonnell framework (2001), provided C.R.S. in section 24-50- employer's a com- tailored to an failure to hire 125.4(3), (2001). 24-4-106(11) 7 C.R.S. Section plainant Big based on racial discrimination. O appeals brought states that under this section Tires, 2. 940 P.2d at 400 n. according 24-4- will be reviewed to section 106(7), (2001). 7 C.R.S. 1248 er, employer determining in whether the that complainant. Bodaghi, 995 against the " employee, against the 'the employer not rebut the discriminated If the does at 297. put forth disbelief of the reasons required to factfinder's

presumption, the factfinder is (citing complainant. Id. if is by [employer] (particularly rule in favor of the disbelief the mendacity) Hicks, 502, by suspicion accompanied 509 U.S. Mary's Honor Ctr. St. (1993)). prima may, together the elements of the 506, 2742, with 125 L.Ed.2d 407 113 S.Ct. case, intentional discrim- facie suffice to show proof re Although the burden of " (quoting at 299 Bodaghi, 995 P.2d ination." complainant, employer the has mains on the St,. 511, 118 Mary's 509 U.S. at Honor Ctr. explanation to producing an the burden of 2742); see also Reeves v. Sanderson S.Ct. employer the prima the facie case: rebut 133, 148, Prods., Inc., 120 Plumbing 580 U.S. non-discriminatory explana provide a must (2000) 2097, (holding 147 L.Ed.2d 105 S.Ct. at Bodaghi, 995 P.2d 297 tion for its action. case, plaintiff's prima facie combined that "a Cir., (citing Mary's 509 U.S. at St. Honor to find that the em- sufficient evidence with 2742). 507, However, if the em 118 S.Ct. false, may justification ployer's asserted legitimate, non-discrimi ployer articulates a fact to conclude that the permit the trier of natory for the adverse decision and reason discriminated"). Thus, unlawfully employer legitimate support provides evidence to rejection employer's "the factfinder's by presumption pri- the purpose, the created 'permit the trier of proferred reasons will drops from the ma facie case is rebutted the ultimate fact of intentional fact to infer Cir., at Mary's case. Honor 509 U.S. St " discrimination, Bodaghi, P.2d at 299 995 Thus, 507, employer if 118 S.Ct. Mary's (quoting St. Honor Ctr. U.S. prof offers sufficient evidence to sustain 2742), already in from evidence 113 S.Ct. legitimate purpose, employee can fered Bodaghi, 995 P.2d at 299. the record. solely prima facie case. prevail on the Bodaghi, at 298. 995 P.2d Finding The of Intentional b. by Supported Discrimination employer If the meets its burden the Record action, legitimate producing a reason for " given 'a full and complainant case, must be Lawley In established a this opportunity compe fair to demonstrate gender discrimination. prima facie case of presumptively valid tent evidence that Specifically, established the elements employment (1) that, for the adverse reasons prima as a of a facie case as follows: " pretext in fact a for discrimination.' woman, class; were protected is a member of a she 401). Tires, (quoting Big 940 P.2d at Id. O (8) qualified position; that she was for the complainant satisfy (she this Importantly, can position abolished suffered that her already proof by action) in the burden of evidence despite employment an adverse her require, in Colorado law does not record. qualifications; and the evidence case, every complainant offer addi supports gender an inference of the record tional evidence to an inference of an discrimination because altered Bodaghi, intentional discrimination. ultimately parking unit was filled P.2d at 298. Rose, person unprotected class. Mike response, articn- Again, employer produces if action, legitimate for its evidence of reason non-discriminatory legitimate, lated a reason "giving full and fair consider the factfinder abolishing Parking Director of Ser sides, position. argued offered both vices ation to the evidence funding question: drop to a from the state proceeds to decide the ultimate due whether, legislature required to cut state-side light of all the evidence in the it was $40,000 record, Finance proved in the Division of employee has salaries unlawfully other units in intentionally dis and Administration. Because employer employee." Bodaghi, layoffs in criminated subjected to the Division had been Burdine, management prior years, concluded (citing 450 U.S. at three 995 P.2d at 298 1089). emphasize, police unit was best situated howev- S.Ct. short, analysis Management reasoning also that absorb this reduction. the Universi- position ty's nondiscriminatory justification concluded that the Director was too for its ac- highly compensated compared However, to the same dispositive tion was of the issue. schools, and, therefore, position at similar it in Bodaghi, made clear once an em- ployer proffers legitimate position, a reason for its decided to abolish the Director real- police salary chief's locate about half of the to action, infer, may the factfinder still from all unit, parking required and save the record, employ- the evidence in the that $40,000in state-side salaries. nondiscriminatory er's in reason was fact a pretext for discrimination. response, Lawley presented In evi University's dence that the non-discriminato Specifically, appeals the court of relied on ry abolishing position for her reason was (1) following evidence from the record: it pretext discriminatory for a reason. Law- management considered the fact that con- ley's University that evidence showed Lawley overpaid; analyzed cluded was it Parking eliminated the Director of Services University Hetzel's concern that retain position, Lawley, highly paid fe held employee posi- of a services whose male male, position, spe in order to create new restructuring; tion had been eliminated in the Rose, cifically employee, tailored for a male it considered the fact that the Univer- fill, ultimately protected another sity did not take account into the written Johnson, employee, being bumped male from counterproposal police. of the chief of Law- job University out of his under rules. The 98CA1912, ley, slip op. No. at 9-10. We will University failed to consult in Chief Urista discuss each in turn. making its decision and failed to consider his analyzing In Hetzel's conclusionthat Law- proposal, calling alternative for the Universi ley overpaid, appeals was the court of rea- ty department to structure the so that most soned, "[There is no evidence in this record necessary savings could be made with reached that [Hetzel] conclusion because Lawley's abolishing position. out In addi Lawley was a woman.... determination [A] tion, question there is a as to whether Hetzel position, positions, as to whether a or which accurately communicated Urista's assess overpaid be ais rational consideration ment of the situation Vice President of starting point formulating in the restruc- Moreover, Lawley present Administration. added). turing." (emphasis Id. at 10 In so repeated ed evidence Hetzel showed holding, appears appeals it that the court of and, salary, though concern with her looking "smoking gun" was for a na- allegedly was abolished because ture direct evidenceof discrimination. Lawley overpaid, failed salary survey conduct a desk audit or formal However, ruled, we have evi- "[Dlirect at the time it made its decision. We con dence of discrimination is rare.... There clude that the evidence is sufficient to create nothing establishing should be novel about University's an inference that asserted through [intentional the use discrimination] nondiscriminatory abolishing reason for Law- evidence, of cireumstantial ... circum- ley's position pretext was a for discrimina probative stantial evidence is not less than tion. evidence, direct some cases is even appeals' Bodaghi The court of conclusion that more reliable." at 995 P.2d Thus, did not discriminate the court's "there is no conclusion that Lawley opinions is inconsistent with our evidence in [Hetzel] this record that reached Big Bodaghi. analyzing O Tires woman," that conclusion because is a 98CA1912, Lawley, slip op. whether the Board's conclusion that the Uni No is error versity against Lawley disregards discriminated was an several relevant facts discretion, abuse of the court of fo the Board's inference of inten- only portion cused on of the evidence from tional discrimination and its conclusion Then, justifica- determining nondiscriminatory the record. rather than supported Lawley's salary substantial evidence tion for its concern with discrimination, pretextual. Board's inference of it eut its fact he money than I do. And sup- making more the record following facts from Well, said, problems with that. I have that "Hetzel sin- conclusion port the Board's Complainant because he believed gled out 292.) (R. II, Although p. court at v. the (R. III, p. money," at v. made too much she management's deci- appeals concluded that 410), supports Board's ultimately part which overpaid was was sion Board, discrimination. exper- intentional analysis, inference with its legitimate First, properly indicates that Universi- set and the record salaries are tise on how system, ty personnel audit establish was adjusted conducted a desk under Lawley's position. persuaded. These facts proper salary for not so Lawley's po- discrimination. However, deciding inference of unlawful to abolish sition, University a for- failed to conduct Next, Hetzel considering the fact that audit, relying in- survey job salary mal retaining with the services was concerned single employment advertisement stead on a appeals employee, the court of con a male manager from a com- parking services cludes, an consistent with the "This is restructuring, one of university Washington, an adver- goals of the parable nounced in a to include that Hetzel everyone tisement failed remain em was that would addition, to the Director of memorandum it was consistent with ployed, and Services, management's decision. explaining conclusion that the Assistant Vice President's his tes- by Lawley overpaid." inaction is inconsistent with Hetzel's held was salary comparison 98CA1912, Again timony slip op. was at 10. Lawley, No Moreover, University's analysis. accepts al- nondis part crucial of his the court criminatory schools action as determi though Hetzel was aware of several reason for its system It fails to consider whether substan in the of Wisconsin native. supports University, he could in the record comparable size to the tial evidence contrary that the Univer salary range for those institu- Board's conclusion provide retaining employee sity's concern with a male tions. inference that supports Hetzel the record indicates that Second, against Lawley intentionally discriminated Lawley's consistently expressed concern with gender.13 review of the because of her Our Students, Morrell, salary. the Dean of Both supports it the Board's record shows testified that Hetzel made and Chief Urista University] contrary "[the inference that tar Lawley's regarding direct comments to them Complainant's job in order to save the geted salary. testified: Chief Urista (R. another, male, employee." at v. job of 410.) III, example, testi p. For Chief Urista money me if I knew how much He asked fied: made, yes, I I know how said she ... says, initial time that Bob Hetzel money [AJt And he

much she makes. saying that this was Well, money you, gave me the memo more than she makes said, Yeah, place, figured ... I there prob- going I have a to take and I don't that, here than what met job tougher her than had to be more [sic] lem than police eye.... playing I was a little bit of Everybody who comes to her is mine. torqued parking. officer, off about That's question-and-an- mad or trying to do the know, you jobs thing as to what else is thankless there is swer one of the most you. happening I here that I don't know about everybody's mad at And because said, telling pretty any problem you're not me about. And I don't have with her easy We that this standard failed to address it is to confuse the standard reasoned note that could be in- appellate whether intentional discrimination of review for review of an administra- applied employer's the deci- originally reason for with the standard ferred when tive decision employer whether an the Board to ascertain Thus, to be Id. we sion is found pretextual. analytical Big adopted approach above. practiced outlined discrimination. O has Tires, unlawful Therefore, appellate question rejected on review earlier court of deci- sup- substantial evidence in the record reasoned that "racial discrimination sions that discharge ports the Board's inference that the as a basis for the not be inferred nondiscriminatory justification proffered supported sub- unless such discrimination is pretextual. Big Tires, O 940 P.2d at 399. stantial evidence." said, "Well, soon he that Chief Urista's counterproposal "demon- this does solve another problem for says, us." And I "What's the strates unnecessary to abolish problem?" other says, "Well, He we have Complainant's position in order to save the a situation where Mike Rose being-his (R. necessary." 410.) funds III, p. atv. position's eliminated, being [sic] appeals court of and if we in failing erred to view this position, have this then that would solve a fact as a relevant piece of circumstantial problem because then Darrell Johnson supporting evidence Board's get wouldn't bumped and then Darrell discrimination. wouldn't have to bump someone else. And only Not did the appeals court of by err so this problem solves a for us." And I failing recognize to that the evidence outlined said, "Okay, understand, so I So what now supports above the Board's inference of dis- you're going you're to going do is to elimi- crimination, the court disregarded also sever- Kathy's job nate you so can job create a al other factors that the Board considered for protect Mike Rose to Darrell Johnson." important analysis. to its The Board focused "No, no, no, this is financial." says, And I on Hetzel's failure to confer with either Chief "Well, it me, doesn't sound like it to it Urista or in formulating proposal you've got sounds like a deal up cooked expressed concern with whether Hetzel you're here where creating position a for a accurately communicated one of Urista's al- person they so don't bump person another suggestions ternative to the Vice President of to save someone job." else's Administration. The court appeals erred (R. II, 291.) p. Moreover, at v. Rangel, Mr. a by failing to recognize the additional former human specialist resources for the these provide facts to the Board's inference University, testified prior to the incident of discrimination. case, at issue in this Hetzel had asked him to In summary, we hold that the Board's change job classification for Johnson. It determination that discrimi- Rangel's was impression that pur- "[Hetzel's] nated Lawley is based on substantial pose was to shelter Darrell Johnson from evidence in the record. The sup- evidence getting-from losing position his or keeping ports the conclusion that protected Hetzel others applying from for be- two employees, male Johnson, Rose and by cause others would qualify for that class forcing lay-off Lawley, highly a paid (R. of work onee it was II, reallocated." at v. employee, female 219-20.) creating posi- p. new Rangel could not recall Hetzel tion, specifically tailored fill, for Rose to ever asking him change job to classification thereby protecting Johnson from being for a woman. bumped by process. Rose These ac- Finally, in considering the fact planned tions were participation without University did not take into account the writ- from and, the division heads plan once the ten counterproposal of Police, the Chief of announced, was in the face of Chief Urista's court of primarily focuses its proposal, alternative which called on the Uni- discussion on whether this supports fact versity to department structure the so that finding of arbitrary capricious action most necessary savings could be made University, and not on whether sup- abolishing without Lawley's position. ports a finding of intentional discrimination. However, the court also concludes summarily Arbitrary Capricious fact, that this above, like the others does not Action support "a conclusion that the action was a pretext for discrimination." Lawley, No 24-50-103(6), (2001) Section 7 C.R.S. au 98CA1912, slip op. Board, at 10. The howev- thorizes the Board to overturn per the state 4 er, opposite conclusion, drew the sonnel director or an appointing authority's1 reasoning 14. The tem, Colorado Constitution defines ranking the term next below the head of such de- "appointing authority" as follows: partment. "The head of Heads of such divisions shall be the principal department each appoint- shall be the appointing authority positions per- all in the ing authority employees for the of his office and system sonnel respective within their divi- divisions, for heads personnel sys- within the XIL, 13(7). sions...." Colo. Const. art. making its determination to be actions those if it finds only actions (1) that including: facts several considered rule or contrary to "arbitrary, capricious, Ur- Chief with either confer failed Hetzel wheth Thus, next determine must

law." formulating proposal his Lawley in ista er the question Lawley's position; abolish was capricious arbitrary and action accurately com- Hetzel as to County existed v. Bd. Kerr of discretion. abuse Presi- the Vice ideas Urista's 235, municated Comm'rs, 170 Colo. (Urista opposed Administration dent (1969). Hetzel); and proffered changes to the County Com DeVegt v. Board In Van of Chief consider University failed to the that 161, County, 98 Colo. Larimer missioners of Uris- one which proposal, alternative Urista's arbitrary and (1936),we defined 703 55 P.2d necessary the accomplish would ta believed stated: action. administrative capricious Lawley's posi- eliminating savings without of discre- arbitrary exercise or Capricious tion. can arise board administrative by an tion case, con- we this DeVegt to Van Applying (a) By ne- namely: ways, only three in Board's supports the the record that clude dili- refusing use reasonable to glecting or give University failed to the that decision as evidence procure such care to and gence to evidence consideration honest and candid exer- in to consider by law authorized it is to act authorized it was which it on before (b) By in it. vested cising the discretion the Specifically, discretion. exercising its consider- honest and give candid failing to Lawley's po- abolish to University's decision it is which it on before of evidence ation capricious because arbitrary and was sition exercising its discre- to act authorized the to consideration give candid to failed in such (c) exercising discretion its By tion. plan proposal, alternative of Police's Chief evidence of a consideration after manner budgetary sav- of the that most emphasizing its that clearly to indicate it as before abolishing Law- made without be ings could from conclusions on is based action ley's position. fairly men that reasonable such evidence reviewing an administrative In evidence considering the honestly and two decision, emphasized have we board's contrary conclusions. reach must doubts all reasonable that key principles: 166, at 705.15 55 P.2d at DeVegt, 98 Colo. Vam the administrative of correctness to the as favor; in its resolved ruling must be body's record review on our [19] Based is discretion that, of unless an abuse and law, there that we find applicable and will shown, determination administrative Board's for the in law basis reasonable awas 281, Kerr, 460 at 170 Colo. disturbed. not be to University's decision that conclusion ais Board The State P.2d at 287. arbitrary and Lawley's position abolish with agency state constitutionally created appeals Therefore, of the court capricious. matters, personnel expertise considerable decision. overturning the Board's erred Hughes, discretionary." 934 which is pres- eration DeVegt to of Van applicability 15. As "The reasoned, Hughes court further v. 895. The P.2d at into doubt called has been ent case weight priority to or to consider Education, factors 891 934 P.2d Higher Department of the Universi- is for any particular factor given be clear that (Colo.App.1997), we make princi- ty to determine." to DeVegt continue in Van ples annunciated Hughes, the narrowly. In DeVegt actions. apply administrative too to Van reads The court arbitrary decision an ALJ's (b) DeVegt defines overturned test the Van court Part findings "give and con- can- (the ALJ's to adopted the failure as the capricious action at Colo- the evidence clusion) Colorado consideration did and honest employee's to act abolishing authorized it is Springs' act of it on before rado DeVegt, Colo. employees' 98 Van exercising discretion." impacted two other position, which explain attempting to capricious. The court P.2d at 705. jobs, was improper for sustain- DeVegt DeVegt basis is an why Van on Van ALJ's reliance reasoned decision, ignores Hughes hear, court ing gather, the ALJ's misplaced: failure "The Therefore, Hughes test. prong of the this second material- required statute is evidence consider it is inconsistent be, to the extent failure, is overruled there if failure ly from different opinion. DeVegt this with Van the consid- evidence, consider gather, hear, and and its given conclusions should be defer to me whether majority holds that a Integrated Servs., ence. Network Inc. finding of intentional discrimination inis Cf. Comm'n, Pub. Utils 875 P.2d 1377 nature of a conclusionof law and is therefore (Colo.1994) (finding that Public subject Utilities to de novo generally, review or mere- Commission is an ageney administrative ly with that it type is a finding or conclusion as expertise considerable in the utility area of agency may which an substitute its own and, regulation, such, judgment for that of a hearing officer. In should be accorded deference). due We will not case, disturb however, either I because consider a findings unless it made a finding of intentional discrimination to abe unsupported by record, exceeded its au fact, of historical as to which the thority, or arbitrarily acted capriciously. Board is bound unless it clearly erroneous, Board, relying on indicating evidence disagree. I took no account of the Although employment discrimination Chiefs proposal; alternative the Assis designated an unfair employment practice by tant to the Vice-President for Administration Colorado, statute in 24-34-402(1)(a), see inaccurately have communicated the Po (2001), C.R.S. we have held that our statute ideas; lice Chiefs and that the closely parallels its federal counterpart in failed very to consult division heads Title VII Rights of the Civil Act and have department whose affected, would be deter expressly adopted the order and allocation of mined that University's action was arbi proof required employment for discrimina trary capricious. supports The record tion pursuant claims filed to that Act. Colo. this determination and we will not disturb it Rights Civil Tires, Inc., Comm'n v. Big O on our limited review. 397, (Colo.1997) 940 P2d 400 (expressly adopting analysis of Douglas McDonnell CONCLUSION Green, Corp. v. 792, 411 1817, U.S. 93 S.Ct. Accordingly, we hold that a finding of in- (1978)). 36 LEd.2d 668 ques The ultimate tentional finding discrimination and a of arbi- tion of intentional discrimination-whether trary capricious action are ultimate con- the nondiscriminatory reasons offered Therefore, clusions of fact. the Board was employer merely are pretext-is a the last entitled to judgment substitute its own for step in a three-step analysis, requiring first the ALJ's regarding both conclu- employee prima establish a facie sions. We also hold that the record contains case of second, discrimination and sufficient evidence to the Personnel employer come forward with nondiscrimina finding was moti- tory reasons for its actions. Bodaghi See v. by gender vated when it Lawley's abolished Res., Dep't 288, Natural 995 P.2d 297-99 of position and that action was (Colo.2000). capricious. We therefore re- finding While a of intentional discrimina verse the appeals' court of holding to the tion is the ultimate determination establish contrary and reinstate the order of the ing an employment unfair practice, it is clear Board. ly a matter of historical fact and must be treated as such a reviewing body. See Justice COATS part, dissents in in concurs Anderson v. Bessemer City, 564, 470 U.S. and, part joins Justice KOURLIS in the 573, 1504, 105 S.Ct. 84 LEd.2d 518 dissent and the concurrence. (finding of intentional discrimination Title COATS, Justice dissenting in part and finding VII context of fact and shall not be concurring part: set clearly erroneous, aside unless as re I part dissent I because do agree quired 52(a)). not by Fed.R.Civ.P. Rather than finding that a of intentional discrimination involving policy legal considerations, or a matter as to which the Personnel question employer whether an has intention was entitled to judgment substitute its ally for subjective discriminated is one of intent. that of Judge Administrative Law employee who An must establish preponder a heard the evidence. It entirely is not clear ance of the evidence that legitimate rea- 1254 only review agency on by an aside be set not its were employer by the offered sons weight of "contrary to the they are where for discrimi pretext a were but reasons

true consistently construed have Plumbing evidence." v. Sanderson Reeves nation. See however, including conclusions, as 143-49, 133, 120 S.Ct. latter Inc., Prods., 530 U.S. questions mixed (2000). of law or only conclusions Such 2097, 105 L.Ed.2d 147 usually phrased fact, are which law and a determination on primarily rest will legal controlling statute language of In entertain Id. credibility the witnesses. v. Exam'rs Med. Bd. State See standard. law, matter as a judgment ing a motion (Colo.1994). 1188, 1193 P.2d McCroskey, 880 ultimate merely preempt may not a court officer, by hearing finding of Evidentiary findings of own its or substitute factfinder agency in an contrast, binding on are credibility determina make It fact. adequate they are long as function review evidence, draw must but weigh the tions v. Blaine by the record. supported ly of the non- in favor Moffat inferences all reasonable 1280, 1, P.2d 748 Re No. Dist. County Sch. 150, 120 S.Ct. Id. at moving party. board (Colo.1988). permit "To 1288 analysis applies three-step identical, evidentiary fact would findings of new make peremp- discriminatory use of challenge of statutory scheme underlying contravene Batson See jury selection. challenges tory respon hearing officer's transferring the 20, 18, 79, 98 n. n. 94 Kentucky, 476 U.S. v. determinations, making factual sibility for (1986); see 1712, 69 L.Ed.2d 90 106 S.Ct. necessarily based are determinations 768, 115 Elem, U.S. v. Purkett also eredibility of wit evaluation on (1995); Valdez L.Ed.2d S.Ct. con weighing of require a and often nesses ("In (Colo.1998) 587, 591 People, 966 evidence, board administrative to an flicting review, proper standard considering the the testi heard nor neither seen has which cases," cit- Title VII from guidance seek we Id. mony the witnesses." of ). Batson, Supreme Court ing Batson majority treats that extent To the v. Bessemer Amderson on relied expressly a mat- as finding of discrimination intentional that of proposition City for the board fact, holding permits fact, then ter of finding of is a discrimination intentional fact with- of historical a matter to determine by a re- deference appropriate entitled testimony of seeing the bearing or n. 120 S.Ct. at 98 out 530 U.S. viewing court. hand, extent to the other theOn witnesses. be "well Likewise, it to have found we intentional discrimi- finding of in determination it treats trial court's settled departs law, radically a matter nation as analysis of actual the Batson step of third and this court of both precedent from the of fact an issue racial discrimination upholds Supreme Court States United review deference afford due law as conclusion Board's P.2d error." only for clear Valdes in the evidence supported sufficient Cerrone, being 590; People v. see also mat- deciding the record, separately without (same). (Colo.1993) I consider Because de novo. of law ter in- finding of holding than Rather of intentional absence finding of an ALJ's a conclusion discrimination tentional fact that was finding of to be a discrimination only intends law, majority if Board, I would by the deference entitled matters of decide agency can administrative to set reversal uphold they are itself, long as fact for historical it aside. issues, its than intermediate ultimate rather hold- prior contravenes holding nevertheless joins in the dissent KOURLIS Justice factfinding to limit court ings of this the concurrence. regard to With receiving evidence. bodies process of in the hearing officers the role 24-4- section adjudication, administrative (2000), distinguishes 105(15)(b), 7 CR.S. fact," "ultimate evidentiary from

"findings fact," the former permits

conclusions

Case Details

Case Name: Lawley v. Department of Higher Education

Court Name: Supreme Court of Colorado

Date Published: Dec 3, 2001

Citation: 36 P.3d 1239

Docket Number: 00SC473

Court Abbreviation: Colo.