Timоthy Williams, Plaintiff-Appellee, v. Bill Elder, in his official capacity as Sheriff of El Paso County, Colorado; and El Paso County Sheriff’s Office Defendants-Appellants.
No. 18CA1987
Colorado Court of Appeals
November 14, 2019
2019COA172
Opinion by JUDGE FREYRE; Pawar and Graham, JJ., concur
El Paso County District Court No. 18CV30745, Honorable Erin Sokol, Judge
The summaries of the Colorado Court of Appeals published opinions constitute no part of the opinion of the division but have been prepared by thе division for the convenience of the reader. The summaries may not be cited or relied upon as they are not the official language of the division. Any discrepancy between the language in the summary and in the opinion should be resolved in favor of the language in the opinion.
SUMMARY
November 14, 2019
2019COA172
No. 18CA1987, Williams v. Elder — Employment — Colorado Anti-Discrimination Act — Age Discrimination — Compensatory Damages; Government — Colorado Governmental Immunity Act
In this employment discrimination case, a division of the court of appeals considers for the first time whether the Colorado Anti-Discrimination Act (CADA) permits the recovery of compensatory damages for age and retaliation claims against a public sector employer or whether such claims are barred by the Colorado Governmental Immunity Act (CGIA). The division concludes that the plain language of
ORDER AFFIRMED IN PART AND REVERSED IN PART
Division I
Opinion by JUDGE FREYRE
Pawar and Graham*, JJ., concur
Announced November 14, 2019
Livelihood Law, LLC, Euell Thomas, Rachel E. Ellis, Denver, Colorado, for Plaintiff-Appellee
Diana K. May, County Attorney, Kenneth R. Hodges, Senior Assistant Cоunty Attorney, Brian E. Schmid, Senior Assistant County Attorney, Peter A. Lichtman, Senior County Attorney, Colorado Springs, Colorado, for Defendants-Appellants
Cornish & Dell’olio, P.C., Ian D. Kalmanowitz, Bradley J. Sherman, Colorado Springs, Colorado, for Amicus Curiae Colorado Plaintiff Employment Lawyers Association
*Sitting by assignment of the Chief Justice under provisions of
I. Factual and Procedural Background
¶ 2 According to the complaint, the EPSO hired Mr. Williams in 2002 and promoted him to the rank of lieutenant in 2015. On March 17, 2016, Sheriff Elder ordered all EPSO employees to complete a survey that asked for their retirement eligibility date. Mr. Williams reported that his retirement eligibility date was June 1, 2018.
¶ 3 On November 6, 2016, Sheriff Elder met with Mr. Williams, made derogatory remarks about wanting employees to “check out,” and told Mr. Williams that if he “couldn’t cut it,” he needed to “get out.” The next day, Sheriff Elder demoted Mr. Williams from lieutenant to senior deputy. To avoid adverse retirement benefit consequences, Mr. Williams resigned on November 8, 2016. The EPSO replaced him with a younger emplоyee. Mr. Williams then filed age discrimination charges with the Colorado Civil Rights Division and Equal Employment Opportunity Commission, on April 4, 2017.
¶ 4 While those charges were pending, the EPSO received a Colorado Open Records Act
¶ 5 On March 27, 2018, Mr. Williams filed his complaint in district court alleging (1) age discrimination and (2) retaliation related to the CORA request. The EPSO filed a motion to dismiss under
¶ 6 In a detailed written order, the district court found that Mr. Williams had exhausted all his administrative remedies and that his сomplaint stated claims for relief, but it ordered supplemental briefing on whether his requested relief — front pay and compensatory damages — were legal remedies barred by the CGIA. In a second thorough written order, the district court found that front pay is an equitable remedy not barred by the CGIA. It further found that under the 2013 amendments to the CADA, compensatory damagеs are not barred by the CGIA.
¶ 7 The EPSO seeks review of this second order under
¶ 8 The partial dissent disagreed with this construction of “state,” believed that “state” includes political subdivisions of the state, and concluded that subsеction 8(g) of the CADA, making the CGIA inapplicable to CADA claims, should allow Houchin to seek compensatory damages. Id. at ¶¶ 28-32 (Berger, J., concurring in part and dissenting in part).
¶ 9 We requested supplemental briefing on Houchin’s application to this case. After considering the supplemental briefs and the statutory language, we conclude that the 2013 amendments require us to analyze the age discrimination and retaliation claims separately. We first conclude that a plaintiff may not obtain compensatory damages for an age discrimination claim under the CADA because the plain language of
¶ 10 However, we conclude that front pay for an age discrimination claim constitutes an equitable remedy under the CADA and is not barred by the CGIA. Therefore, we affirm the portion of the court’s order denying EPSO’s motion to dismiss for age discrimination related to front pay.
¶ 11 We next conclude that the CADA does not restrict the remedies for a retaliation claim and that this claim is subject to
II. Age Discrimination
¶ 12 We first address the EPSO’s challenge to Mr. Williams’ age discrimination claim because the General Assembly has chosen to treat this form of discrimination differently from others. Under the plain language of
A. Standard of Review and Law
¶ 13 Because the district court decided a question of law, we review thе issue de novo. City of Colorado Springs v. Conners, 993 P.2d 1167, 1171 (Colo. 2000). We read statutes “with a goal of giving ‘consistent, harmonious, and sensible effect to all its parts.’” People v. Summer, 208 P.3d 251, 254 (Colo. 2009) (quoting People v. Dist. Court, 713 P.2d 918, 921 (Colo. 1986)). “But we avoid construing a statute to render any of its words superfluous or to lead to an absurd result.” People in Interest of M.C., 2012 COA 64, ¶ 13.
¶ 14 The CGIA provides public entities, like the EPSO, immunity against all “claims for injury which lie in tort or could lie in tort,” subject to nine exceptions not at issue.
¶ 15 In contrast, CADA claims, while similar to torts, are “not designed primarily to compensate individual claimants.” Connors, 993 P.2d at 1174. Instead, their purpose is “to fulfill the ‘basic responsibility of government to redress discriminatory employment practices on the basis of race, creed, color, sex, age, national origin, or ancestry.’” Id. (quoting Colo. Civil Rights Comm’n ex rel. Ramos v. Regents of the Univ. of Colo., 759 P.2d 726, 731 (Colo. 1988)).1 Thus, “any benefits to an individual claimant, such as the recovery of back pay, are ‘merely incidental’ to [CADA’s] greater purpose of eliminating workplace discrimination.” Connors, 993 P.2d at 1174 (quoting Brooke v. Rest. Servs., Inc., 906 P.2d 66, 71 (Colo. 1995)).
The CADA remedies, therefore, are equitable in nature, do not sound in tort, and are not barred by the CGIA. Id. at 1176-77.
¶ 16 In 2013, the General Assembly expanded the remedies available under the CADA to include punitive and compensatory damages.
In a civil action involving a claim of discrimination based on age, the plaintiff is entitled only to the relief authorized in subsection (2) of this section . . . if the court finds that the defendant engaged in a discriminatory or unfair employment practice based on age.
(Emphasis added.)
¶ 17
In addition to the relief authorized by
section 24-34-306(9) , the commission or the court may order affirmative relief that the
commission or court determines to be appropriate, including the following relief, against a respondent who is found to have
engaged in an unfair or discriminatory employment practice: (I) Reinstatement or hiring of employees, with or without back pay. If the commission or court orders back pay, the employer, employment agency, or labor organization responsible for the discriminatory or unfair employment practice shall pay the back pay to the person who was the victim of the practice.
(II) Front pay; or
(III) Any other equitable relief the commission or court deems appropriate.
(Emphasis added.)
¶ 18
Compensatory or punitive damages awarded pursuant to this subsection (3) are in addition to, and do not include, front pаy, back pay, interest on back pay, or any other type of relief awarded pursuant to subsection (2) of this section.
¶ 19 The 2013 amendments also added
A claim filed pursuant to this subsection (8) by an aggrieved party against the state for compensatory damages for an intentional unfair or discriminatory employment practice is not subject to the “Colorado Governmental Immunity Act”, article 10 of this title.
B. Analysis
¶ 20 We conclude that the plain language of
III. Retaliation Claim
¶ 21 The EPSO contends that compensatory damages and front pay under the CADA sound in tort or could sound in tort, and, thus, are legаl remedies barred by the CGIA. It urges us to follow the Houchin majority and to hold that compensatory damages are a legal remedy subject to the CGIA.
¶ 22 The Houchin majority narrowly construed Connors and reasoned that “the type of claims asserted, and the nature of the relief sought by the plaintiff, determine[] the framework for deciding whether the CGIA applie[s].” Id. at ¶ 18. It then held that compensatory damages requested under the CADA are not equitable in nature but constitute relief for personal injuries “suffered as a consequence of prohibited conduct” and, thus, were subject to the CGIA. Id. at ¶ 20 (quoting Connors, 993 P.2d at 1176). In the majority’s view, the CGIA bars some CADA claims for relief (compensatory damages) and not others (equitable claims like back pay and reinstatement).
¶ 23 Taking a broader view of Connors, the partial dissent reasoned that whether a statute is subject to the CGIA should be determined not only by looking at the nature of the relief sought, but also by examining the “‘purposes of [the statute]’ and the ‘nature of the injuries.’” Id. at ¶ 35 (Berger, J., concurring in part and dissenting in part) (quoting Connors, 993 P.2d at 1173, 1175). Recognizing that we are not bound by the majority in Houchin, People v. Smoots, 2013 COA 152, ¶ 21, we agree with the partial dissent, because its reasoning is supported by supreme court precedent subsequent to Connors and is consistent with the Connors holding. Colo. Dep’t of Transp. v. Brown Grp. Retail, Inc., 182 P.3d 687, 690 (Colo. 2008) (“[T]he question of coverage by the [CGIA] ultimately turns on the source and nature of the government’s liability, or the nature of the duty from the breach of which liability arises.”); Robinson v. Colo. State Lottery Div., 179 P.3d 998, 1006 (Colo. 2008) (“[T]he nature of the relief is not dispositive as to the question of whether a claim lies in tort. Rather, the relief requested is merely an aid in understanding the duty breached or the injury
¶ 24 Our supreme court identified the CADA’s purpose as
to make the claimant whole within a particular setting, i.e., to place the claimant in the position she would have been in but for the discriminatory conduct. These forms of relief . . . are equitable in nature and are aimed at eliminating workplace discrimination, not compensating individuals for their particular injuries arising from violations of the [CADA].
Connors, 993 P.2d at 1175 (citation omittеd). In our view, the 2013 amendments to the CADA did not change its fundamental purpose. Houchin, ¶ 43 (Berger, J., concurring in part and dissenting in part). Instead, the expanded remedies available under the amendments remain “merely incidental” to the CADA’s primary purpose of ending workplace discrimination. See Brooke, 906 P.2d at 71.
¶ 25 As well, the monetary limitations set by the CADA for compensatory damages supрort its underlying non-tort purpose. See
¶ 26 As well, we conclude that
¶ 27 We are not persuaded to the contrary by the Houchin majority’s interpretation of the word “state” in subsection (8)(g). Hogan v. Bd. of Cty. Comm’rs, 2018 COA 86, ¶ 37. Like the partial dissent in Houchin, we interpret the word “state” broadly to include all state entities able to seek immunity under the CGIA. Indeed, we see no reason to “limit[] many public employees’ recourse to compensatory damages [for unlawful discrimination claims] only because they happen to be employed by one of Coloradо’s numerous political subdivisions, as opposed to the state itself[.]” Houchin, ¶ 54 (Berger, J., concurring in part and dissenting in part). When defining “employers” subject to the CADA in
¶ 28 In sum, we conclude that front pay and compensatory damages for a retaliation claim under the CADA are equitable remedies not barred by the CGIA. We further conclude that Mr. Williams is an “aggrieved party” under
IV. Conclusion
¶ 29 We affirm the court’s order as it relates to the retaliation claim, and the front pay portion of the court’s order for the age discrimination claim. We reverse the compensatory damages portion of the court’s order for age discrimination and conclude that the CGIA bars it.
JUDGE PAWAR and JUDGE GRAHAM concur.