25CA0128 Alexander v ICAO 11-26-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0128 Industrial Claim Appeals Office of the State of Colorado DD No. 24153-2024
Daniel Alexander,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Luna Freight, LLC,
Respondents.
ORDER AFFIRMED
Division A Opinion by JUDGE BERNARD* Román, C.J., and Taubman*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 26, 2025
Daniel Alexander, Pro Se
No Appearance for Respondent Industrial Claim Appeals Office
Ogletree, Deakins, Nash, Smoak & Stewart, PC, William Cusack, Denver, Colorado, for Respondent Luna Freight, LLC
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Claimant, Daniel Alexander, appeals the denial of his claim for
unemployment benefits. We affirm.
I. Background
¶2 Claimant worked as a delivery driver until his employer, Luna
Freight, LLC, terminated his employment. A short time later, a
deputy from the Division of Unemployment Insurance denied his
claim for unemployment benefits. The division’s deputy found
claimant was disqualified from receiving benefits under section 8-
73-108(5)(e)(XIV), C.R.S. 2025 (disqualifying claimants terminated
for rudeness, insolence, or offensive behavior).
¶3 Claimant appealed, and the division scheduled an evidentiary
hearing to address the reasons why employer terminated his
employment. Upon reviewing the evidence, the hearing officer
found employer had terminated him because he had made a “lewd”
comment in a communications app used by employer’s drivers. But
the hearing officer reversed the deputy’s decision and approved
claimant’s benefits claim.
¶4 Unlike the deputy, the hearing officer did not evaluate the
facts under section 8-73-108(5)(e)(XIV). Rather, he considered only
subsection (5)(e)(XX), which disqualifies claimants who fail to meet
1 “established job performance or other defined standards.” He found
that claimant’s lewd post did not violate any of Employer’s
established job performance or other defined standards. In
practice, the hearing officer noted, employees often used the app to
vent about “cris[e]s and frustration[s],” and, in doing so, they
“would regularly use language that was generally considered lewd.”
Although the hearing officer found that employer had been
“offended” by the comment and that the comment “may have been a
violation of a written policy or code of conduct[,]” it was nonetheless
“not a violation of [employer’s] actual standard.” As a result, the
hearing officer decided the claim was not disqualified under
subsection (5)(e)(XX).
¶5 The hearing officer also decided claimant was not at fault for
his job termination. Specifically, the hearing officer noted that
“[i]nsufficient persuasive evidence exists on the record to indicate
that [claimant] exercised choice or control over the circumstances”
leading to his “separation from employment because he did not act
as believed and he was unaware that his language at that time
might be considered inappropriate by the employer.” Accordingly,
the hearing officer reversed the deputy’s decision.
2 ¶6 Employer appealed the decision to a panel of the Industrial
Claims Appeals Office, which reversed it. The panel first referred to
the hearing officer’s finding that employer terminated claimant’s
employment because he had made an offensive comment in the
driver communications app. Deferring to that finding, the panel
next considered it, as the hearing officer had, through the lens of
section 8-73-108(5)(e)(XIV), which disqualifies claimants who are
terminated for rudeness, insolence, or offensive behavior.
¶7 Applying an objective standard for offensiveness, the panel
found that claimant’s statement met the statutory standard, that it
was reasonable for employer to be offended by the comment, and
that, consequently, claimant was disqualified under subsection
(5)(e)(XIV). The panel also decided claimant had exercised volition
when he posted the offensive message in the communications app,
and he was, therefore, at fault for his job termination and not
otherwise entitled to unemployment benefits.
II. Discussion
A. Standard of Review and Legal Principles
¶8 Under section 8-74-107, C.R.S. 2025, we will not disturb
factual findings “supported by substantial evidence,” and we will
3 only set aside the panel’s decision if (1) it acted without or in excess
of its powers; (2) the decision was procured by fraud; (3) the factual
findings did not support its decision; or (4) the decision is erroneous
as a matter of law. Substantial evidence is “probative, credible, and
competent, of a character which would warrant a reasonable belief
in the existence of facts supporting a particular finding.” Rathburn
v. Indus. Comm’n, 566 P.2d 372, 373 (Colo. App. 1977).
¶9 Section 8-73-108(5)(e) provides claimants will be disqualified
from receiving benefits if their employment separation occurred for
“any” of several specifically enumerated reasons. See M&A
Acquisition Corp. v. Indus. Claim Appeals Off., 2019 COA 173, ¶ 21.
It is well established that “the statute contemplates that hearing
officers and the [p]anel will consider all potentially applicable . . .
disqualifying provisions.” Id. at ¶ 14.
¶ 10 Section 8-73-108(5)(e)(XIV) disqualifies any claimant
terminated for “[r]udeness, insolence, or offensive behavior . . . not
to be reasonably countenanced by a customer, supervisor, or fellow
worker.” To determine what caused a claimant’s job termination,
the hearing officer considers the totality of the evidence. Eckart v.
Indus. Claim Appeals Off., 775 P.2d 97, 99 (Colo. App. 1989).
4 ¶ 11 Section 8-73-108(5)(e)’s disqualification provisions “must be
read in light of the express legislative intent . . . to provide benefits
to those who become unemployed through ‘no fault’ of their own.”
Cole v. Indus. Claim Appeals Off., 964 P.2d 617, 618 (Colo. App.
1998) (quoting § 8-73-108(1)(a)). So, even if the hearing officer’s
findings may support disqualification under that section, claimants
may still be entitled to benefits if the totality of the circumstances
establishes that their job separation occurred through no fault of
their own. Id. In this context, “fault” requires a volitional act or
“the exercise of some control or choice by the claimant in the
circumstances resulting in the separation such that the claimant
can be said to be responsible for the separation.” Id. Claimants’
responsibility or “fault” for their job separation is an ultimate legal
conclusion based on the established findings of evidentiary fact. Id.
at 618-19.
B. Causation
¶ 12 Claimant contends that the panel erred when it determined
the cause of his job termination. He asserts the panel “relied on”
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25CA0128 Alexander v ICAO 11-26-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA0128 Industrial Claim Appeals Office of the State of Colorado DD No. 24153-2024
Daniel Alexander,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado and Luna Freight, LLC,
Respondents.
ORDER AFFIRMED
Division A Opinion by JUDGE BERNARD* Román, C.J., and Taubman*, J., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced November 26, 2025
Daniel Alexander, Pro Se
No Appearance for Respondent Industrial Claim Appeals Office
Ogletree, Deakins, Nash, Smoak & Stewart, PC, William Cusack, Denver, Colorado, for Respondent Luna Freight, LLC
*Sitting by assignment of the Chief Justice under provisions of Colo. Const. art. VI, § 5(3), and § 24-51-1105, C.R.S. 2025. ¶1 Claimant, Daniel Alexander, appeals the denial of his claim for
unemployment benefits. We affirm.
I. Background
¶2 Claimant worked as a delivery driver until his employer, Luna
Freight, LLC, terminated his employment. A short time later, a
deputy from the Division of Unemployment Insurance denied his
claim for unemployment benefits. The division’s deputy found
claimant was disqualified from receiving benefits under section 8-
73-108(5)(e)(XIV), C.R.S. 2025 (disqualifying claimants terminated
for rudeness, insolence, or offensive behavior).
¶3 Claimant appealed, and the division scheduled an evidentiary
hearing to address the reasons why employer terminated his
employment. Upon reviewing the evidence, the hearing officer
found employer had terminated him because he had made a “lewd”
comment in a communications app used by employer’s drivers. But
the hearing officer reversed the deputy’s decision and approved
claimant’s benefits claim.
¶4 Unlike the deputy, the hearing officer did not evaluate the
facts under section 8-73-108(5)(e)(XIV). Rather, he considered only
subsection (5)(e)(XX), which disqualifies claimants who fail to meet
1 “established job performance or other defined standards.” He found
that claimant’s lewd post did not violate any of Employer’s
established job performance or other defined standards. In
practice, the hearing officer noted, employees often used the app to
vent about “cris[e]s and frustration[s],” and, in doing so, they
“would regularly use language that was generally considered lewd.”
Although the hearing officer found that employer had been
“offended” by the comment and that the comment “may have been a
violation of a written policy or code of conduct[,]” it was nonetheless
“not a violation of [employer’s] actual standard.” As a result, the
hearing officer decided the claim was not disqualified under
subsection (5)(e)(XX).
¶5 The hearing officer also decided claimant was not at fault for
his job termination. Specifically, the hearing officer noted that
“[i]nsufficient persuasive evidence exists on the record to indicate
that [claimant] exercised choice or control over the circumstances”
leading to his “separation from employment because he did not act
as believed and he was unaware that his language at that time
might be considered inappropriate by the employer.” Accordingly,
the hearing officer reversed the deputy’s decision.
2 ¶6 Employer appealed the decision to a panel of the Industrial
Claims Appeals Office, which reversed it. The panel first referred to
the hearing officer’s finding that employer terminated claimant’s
employment because he had made an offensive comment in the
driver communications app. Deferring to that finding, the panel
next considered it, as the hearing officer had, through the lens of
section 8-73-108(5)(e)(XIV), which disqualifies claimants who are
terminated for rudeness, insolence, or offensive behavior.
¶7 Applying an objective standard for offensiveness, the panel
found that claimant’s statement met the statutory standard, that it
was reasonable for employer to be offended by the comment, and
that, consequently, claimant was disqualified under subsection
(5)(e)(XIV). The panel also decided claimant had exercised volition
when he posted the offensive message in the communications app,
and he was, therefore, at fault for his job termination and not
otherwise entitled to unemployment benefits.
II. Discussion
A. Standard of Review and Legal Principles
¶8 Under section 8-74-107, C.R.S. 2025, we will not disturb
factual findings “supported by substantial evidence,” and we will
3 only set aside the panel’s decision if (1) it acted without or in excess
of its powers; (2) the decision was procured by fraud; (3) the factual
findings did not support its decision; or (4) the decision is erroneous
as a matter of law. Substantial evidence is “probative, credible, and
competent, of a character which would warrant a reasonable belief
in the existence of facts supporting a particular finding.” Rathburn
v. Indus. Comm’n, 566 P.2d 372, 373 (Colo. App. 1977).
¶9 Section 8-73-108(5)(e) provides claimants will be disqualified
from receiving benefits if their employment separation occurred for
“any” of several specifically enumerated reasons. See M&A
Acquisition Corp. v. Indus. Claim Appeals Off., 2019 COA 173, ¶ 21.
It is well established that “the statute contemplates that hearing
officers and the [p]anel will consider all potentially applicable . . .
disqualifying provisions.” Id. at ¶ 14.
¶ 10 Section 8-73-108(5)(e)(XIV) disqualifies any claimant
terminated for “[r]udeness, insolence, or offensive behavior . . . not
to be reasonably countenanced by a customer, supervisor, or fellow
worker.” To determine what caused a claimant’s job termination,
the hearing officer considers the totality of the evidence. Eckart v.
Indus. Claim Appeals Off., 775 P.2d 97, 99 (Colo. App. 1989).
4 ¶ 11 Section 8-73-108(5)(e)’s disqualification provisions “must be
read in light of the express legislative intent . . . to provide benefits
to those who become unemployed through ‘no fault’ of their own.”
Cole v. Indus. Claim Appeals Off., 964 P.2d 617, 618 (Colo. App.
1998) (quoting § 8-73-108(1)(a)). So, even if the hearing officer’s
findings may support disqualification under that section, claimants
may still be entitled to benefits if the totality of the circumstances
establishes that their job separation occurred through no fault of
their own. Id. In this context, “fault” requires a volitional act or
“the exercise of some control or choice by the claimant in the
circumstances resulting in the separation such that the claimant
can be said to be responsible for the separation.” Id. Claimants’
responsibility or “fault” for their job separation is an ultimate legal
conclusion based on the established findings of evidentiary fact. Id.
at 618-19.
B. Causation
¶ 12 Claimant contends that the panel erred when it determined
the cause of his job termination. He asserts the panel “relied on”
employer’s “inconsistent” statements regarding the cause of his
termination. Indeed, as claimant points out, employer’s witnesses
5 testified to a multitude of reasons why claimant no longer works for
employer, including belligerent behavior, job abandonment, poor
performance, and an inappropriate comment.
¶ 13 But we reject claimant’s contention because the panel did not
determine the cause of his job termination. Rather, the panel
deferred to the hearing officer’s factual finding that employer
terminated him for making a “lewd” comment on the drivers’ app.
In the briefs he submitted to the panel, he did not challenge this
finding, and he cannot raise this challenge now. See Wafford v.
Indus. Claim Appeals Off., 907 P.2d 741, 744 (Colo. App.
1995)(declining to consider argument not raised before the panel).
¶ 14 Unlike the hearing officer, the panel considered this fact
through the lens of subsection (5)(e)(XIV). Claimant does not
suggest the panel erred in doing so, and we do not perceive any
error in doing so. To the contrary, the hearing officer erred when he
determined that subsection (5)(e)(XX) did not disqualify claimant
without considering whether any other disqualification provision
applied. See M&A Acquisition Corp., ¶ 14 (noting the statute
contemplates hearing officers and the panel will consider whether
any of the disqualification provisions apply).
6 ¶ 15 Claimant also appears to contend that he should not be
disqualified from receiving benefits because employer did not
terminate other employees who made similarly lewd or offensive
comments on the drivers’ app. This argument does not succeed for
a couple of reasons.
¶ 16 First, neither the hearing officer nor the panel made a factual
finding that other employees made lewd or offensive remarks and
were not terminated, and we cannot make factual findings. § 8-74-
107 (omitting any factfinding authority from the scope of our
review). Second, even if the hearing officer or panel had made such
a finding, claimant cites no legal authority supporting his argument
that such facts would preclude his own disqualification, as a matter
of law, and we are not aware of any such authority.
¶ 17 Claimant highlights the hearing officer’s findings that, in
making the lewd comment, he did not intend to offend employer or
to violate any work policy. He asserts the panel erred when it did
not address these findings.
¶ 18 We disagree because the panel noted that an “objective
standard” applies in administering subsection (5)(e)(XIV). See Davis
v. Indus. Claim Appeals Off., 903 P.2d, 1243, 1244 (Colo. App.
7 1995). It specifically stated that “the required determination is
whether a reasonable person in the circumstances would find the
behavior to be rude, insolent, or offensive and would not
countenance it.” In other words, claimant’s intent was irrelevant to
the analysis.
¶ 19 Claimant next points to the hearing officer’s finding that
employer’s demonstrated expectations regarding use of the drivers’
app differed significantly from its written policy regarding such use.
He submits the panel erred by “ignor[ing]” this finding.
¶ 20 We disagree because claimant does not explain — and we do
not see — how this putative difference would justify reversing the
panel’s decision. Indeed, although this finding supported the
hearing officer’s subsection (5)(e)(XX) analysis, it is unclear to us
how it relates to disqualification under subsection (5)(e)(XIV).
Lacking any citation to legal authority or guidance from claimant,
we decline to consider this contention further. 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).
¶ 21 The panel’s order is affirmed.
8 CHIEF JUDGE ROMÁN and JUDGE TAUBMAN concur.