Cubbon v. ICAO

• Court: Colorado Court of Appeals
• Decided: March 19, 2026
• Docket: 25CA1966
• Status: Unpublished

Opinion

25CA1966 Cubbon v ICAO 03-19-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA1966 Industrial Claim Appeals Office of the State of Colorado DD No. 787-2025

Kathleen T. Cubbon,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado,

Respondent.

ORDER AFFIRMED

Division III Opinion by JUDGE MOULTRIE Dunn and Harris, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced March 19, 2026

Kathleen T. Cubbon, Pro Se

No Appearance for Respondent ¶1 Kathleen T. Cubbon appeals the denial of her claim for

unemployment benefits. We affirm.

I. Background

¶2 Cubbon worked as an event coordinator for Dave and Buster’s

Management Corporation, LLC (Employer) until it terminated her

employment. Shortly thereafter, a deputy for the Division of

Unemployment Insurance (Division) granted Cubbon’s claim for

unemployment benefits. Employer appealed that decision, and the

Division scheduled the matter for an evidentiary hearing regarding

the reasons for Cubbon’s job termination.

¶3 Cubbon didn’t attend the hearing. Employer’s representative,

General Manager Michelle Hughes, attended and testified on

Employer’s behalf. Employer called no other witnesses but

tendered multiple written statements authored by employees

purportedly familiar with Cubbon’s use of a racial slur in the

workplace, including one by Cubbon herself. The hearing officer

admitted these statements into evidence.

¶4 Upon reviewing the evidence, the hearing officer found that

Employer “discharged [Cubbon] because [she] used a racial slur in

the office.” In using the slur, the hearing officer found, Cubbon

1 violated Employer’s “professional expectation policy.” Thus, the

hearing officer determined, Cubbon was disqualified from receiving

unemployment benefits under section 8-73-108(5)(e)(XX), C.R.S.

2025 (disqualifying claimants terminated for failure to meet

“established job performance or other defined standards”).

¶5 Cubbon submitted an untimely appeal to the Industrial Claim

Appeals Office (the Panel) and also requested a new hearing. The

Panel issued an order finding that good cause existed to allow

Cubbon’s untimely appeal to proceed; however, it found that no

good cause supported her request for a new hearing. Cubbon then

submitted briefing to the Panel, which issued an order affirming the

hearing officer’s decision. While the Panel agreed with the hearing

officer that Cubbon was disqualified under section

8-73-108(5)(e)(XX), it determined that disqualification was also

appropriate under section 8-73-108(5)(e)(XIV) (disqualifying

claimants terminated for rudeness, insolence, or offensive behavior).

Applying an objective standard, the Panel determined that a

reasonable person under the same circumstances would find

Cubbon’s verbalization of the racial slur offensive and would not

2 countenance it, even if, as Cubbon argued, she was only repeating

what someone else said.

II. Standard of Review

¶6 We may not disturb factual findings “supported by substantial

evidence” and may only set aside the Panel’s decision if (1) the Panel

acted without or in excess of its powers; (2) the decision was

procured by fraud; (3) the factual findings don’t support its

decision; or (4) the decision is erroneous as a matter of law.

§ 8-74-107(4), (6), C.R.S. 2025. Substantial evidence is that which

is “probative, credible, and competent, [and] of a character [that]

would warrant a reasonable belief in the existence of facts

supporting a particular finding, without regard to the existence of

contradictory testimony or contrary inferences.” Rathburn v. Indus.

Comm’n, 566 P.2d 372, 373 (Colo. App. 1977).

¶7 An individual is disqualified from receiving unemployment

benefits if the separation from employment occurred based on the

“[r]udeness, insolence, or offensive behavior of the worker not

reasonably to be countenanced by a customer, supervisor, or fellow

worker.” § 8-73-108(5)(e)(XIV). An objective standard applies in

determining whether a claimant has engaged in such disqualifying

3 behavior. Davis v. Indus. Claim Appeals Off., 903 P.2d 1243, 1244

(Colo. App. 1995). We review de novo ultimate conclusions of fact

and ultimate legal conclusions, including whether certain behavior

is objectively “not reasonably to be countenanced” under section

8-73-108(5)(e)(XIV). Harbert v. Indus. Claim Appeals Off., 2012 COA

23, ¶¶ 8-9; see Federico v. Brannan Sand & Gravel Co., 788 P.2d

1268, 1272 (Colo. 1990) (Ultimate conclusions of fact are

“conclusions of law or mixed questions of law and fact that are

based on evidentiary facts” and are generally “phrased in the

language of the controlling statute or legal standard.”).

III. Discussion

¶8 As a threshold matter, because we find no reversible error in

connection with the Panel’s ruling under section

8-73-108(5)(e)(XIV), as explained below, we don’t consider Cubbon’s

arguments related to the Panel’s ruling under section

8-73-108(5)(e)(XX).1 See § 8-73-108(5)(e) (a claimant is disqualified

1 This includes her arguments that Employer (1) failed to produce

copies of the policy, the employee handbook, and employee training materials it relied on to terminate her; (2) submitted false evidence about Cubbon’s employee training and the events underlying her termination; and (3) failed to follow its escalating discipline policy.

4 from receiving benefits where any one of the enumerated provisions

is met).

A. No Reversible Error as to Factual Findings and Legal Conclusions

¶9 Contrary to Cubbon’s argument, substantial evidence

supports the hearing officer’s finding that she said a racial slur —

specifically, the N-word — at work. Indeed, Cubbon’s own written

statement, admitted as evidence, supports this finding.

¶ 10 To the extent that Cubbon argues that her written statement

was hearsay, we reject that argument. See CRE 801(d)(2)

(nonhearsay includes a party’s own statement offered against

them). It’s undisputed that Cubbon authored the statement. She

was therefore familiar with its contents before the hearing.

Moreover, no other evidence contradicts her statement, and

Cubbon’s briefing to this court implicitly acknowledges she said the

racial slur at work. We therefore perceive no reversible error in the

hearing officer’s finding that Cubbon said the racial slur at work.

¶ 11 Cubbon doesn’t contest that Employer fired her for saying the

racial slur at work, and substantial evidence supports that finding

as well. At the hearing, Hughes testified that she terminated

5 Cubbon for behaving “inappropriate[ly]” and “disrespectful[ly]” when

she used the racial slur at work.

¶ 12 Moreover, though Cubbon argues that the context in which

she said the racial slur mitigated the circumstances, we agree with

the Panel’s conclusion that vocalizing the racial slur at work

constituted objectively offensive conduct “not reasonably to be

countenanced by a customer, supervisor, or fellow worker,” even

considering the context here. § 8-73-108(5)(e)(XIV).

B. No Procedural Errors Merit Setting Aside the Order

¶ 13 Cubbon further contends that multiple procedural errors

require setting aside the order. We consider, and reject, each

contention in turn.

1. Request for New Hearing

¶ 14 Cubbon argues that the Panel’s decision to deny her request

for a new hearing violated her due process rights and 42 U.S.C.

§ 503. Specifically, we discern that she argues that the Panel

impermissibly denied her the opportunity for a fair hearing. See 42

U.S.C. § 503 (requiring a fair hearing where the state denies

unemployment benefits); Mountain States Tel. & Tel. Co. v. Dep’t of

Lab. & Emp., 520 P.2d 586, 588 (Colo. 1974) (due process entitles

6 litigants to advance notice and an opportunity to be heard before

state action resulting in deprivation of a significant property

interest).

¶ 15 As required, the Panel evaluated Cubbon’s request for a new

hearing through the lens of Division of Unemployment Insurance

Regulation 11.2.13.2, 7 Code Colo. Regs. 1101-2. In doing so, the

Panel necessarily considered whether Cubbon received an

opportunity for a fair hearing and found that she had. We discern

no error.

¶ 16 Regulation 11.2.13.2 required that the Panel receive Cubbon’s

written request for a new hearing within twenty calendar days of

the date the hearing officer mailed the decision. Id. That regulation

also required Cubbon to provide a statement showing good cause

for missing the initial hearing. Id. Because Cubbon filed her

request for a new hearing fifty-seven days late, the Panel

additionally considered whether she demonstrated good cause for

the late filing. Id.

¶ 17 In determining whether a claimant has shown good cause, the

Panel considers (1) “whether the party acted in the manner that a

reasonably prudent individual would have acted under the same or

7 similar circumstances”; (2) whether the Division committed an

“administrative error”; (3) whether the claimant “exercised control

over the untimely action”; (4) the length of delay in filing;

(5) whether the delay prejudiced “any other interested party”; and

(6) “whether denying good cause would lead to a result that is

inconsistent with the law.” Id. at Reg. 12.1.8. The Panel need not

make findings as to every foregoing factor. Id. at Reg. 12.1.8.8.

¶ 18 Here, the Panel found that good cause excused her late filing

but not her failure to appear for the initial hearing. As a result, the

Panel allowed Cubbon to proceed with an appeal of the hearing

officer’s decision but denied her request for a new hearing.

Substantial evidence supports the Panel’s finding that accessing the

hearing was within Cubbon’s control, and that she acted

unreasonably by failing to do so.

¶ 19 The record reflects that the hearing notice, which included

instructions for participating in the hearing, was mailed to the

parties approximately two weeks before the hearing was held. The

instructions contained the web address and docket number

required to check in for the hearing, information regarding when

parties needed to check in, an admonition that a nonappealing

8 party’s failure to check in could result in the hearing proceeding

without that party, and an admonition that a claimant could be

required to repay benefits.

¶ 20 Cubbon argued that she “was not able to access the hearing”

and was “denied access” but provided no details regarding her

attempts to access the hearing or the specific trouble she

encountered. From Cubbon’s statement that she had trouble

following the “given instructions” to access the hearing, the Panel

reasonably inferred that Cubbon timely received the hearing notice.

Without more information from Cubbon, the Panel concluded that

she had the capacity to access the hearing but failed to do so

because she failed to follow the instructions. It further found that

the Division made no administrative errors contributing to her

failure to attend the hearing. The above-mentioned evidence that

Cubbon timely received instructions from the Division supports this

finding.

¶ 21 In sum, the Panel found that the Division provided Cubbon an

opportunity for a fair hearing, but she didn’t take advantage of it.

Due process and 42 U.S.C. § 503 only require that a party be given

an opportunity to be heard; neither mandates that a party in fact be

9 heard if she chooses not to take advantage of the opportunity. See

42 U.S.C. § 503; Norton v. Colo. State Bd. of Med. Exam’rs, 821 P.2d

897, 901-02 (Colo. App. 1991).

¶ 22 In any event, we note that none of the evidence that Cubbon

suggests she would present in a hearing would affect the

disposition under section 8-73-108(5)(e)(XIV). Cubbon suggests she

would testify regarding the circumstances and personnel involved

when a manager used the slur and when she reported and thereby

repeated it. However, as noted above, the Panel concluded that

verbalizing the slur in the workplace was objectively offensive,

regardless of whether Cubbon was just repeating what she heard

someone else say. Again, we agree with this conclusion, so no

additional evidence regarding context or intent would affect the

disposition.

2. Additional Issues

¶ 23 Cubbon also argues that the hearing notice was impermissibly

vague because it failed to advise that the hearing officer’s resolution

of the issues could result in Cubbon’s liability for an overpayment

of benefits. We reject this argument for two reasons. First, the

hearing notice clearly says that a claimant “may have to repay

10 benefits received if, as a result of [the appeal hearing], the previous

award of benefits is reversed.” Second, even if the hearing notice

had not clearly advised Cubbon of the potential for repayment,

because she sought benefits under the Colorado Employment

Security Act, the law presumes her familiarity with its provisions.

Paul v. Indus. Comm’n, 632 P.2d 638, 639 (Colo. App. 1981).

Section 8-74-109(2), C.R.S. 2025, expressly requires the Division to

recover benefits a claimant received “to which [s]he is subsequently

determined to be not entitled as a result of a final decision in the

appeals process.”

¶ 24 Cubbon also argues that the hearing officer erred in admitting

evidence that Cubbon had not been provided before the hearing.

Cubbon contends that she received no documents before the

hearing, including the written statements she and various

coworkers authored. Assuming that Cubbon didn’t receive these

documents before the hearing, we see no harm in the hearing

officer’s admitting them into evidence. As discussed above,

Cubbon’s written statement alone supports the hearing officer’s

finding that she said the racial slur at work. It’s undisputed that

Cubbon was familiar with the contents of her own written

11 statement before the hearing. Thus, we disregard any error in the

hearing officer’s admitting it into evidence. See C.A.R. 35(c) (“The

appellate court may disregard any error or defect not affecting the

substantial rights of the parties.”).

IV. Disposition

¶ 25 We affirm the Panel’s order.

JUDGE DUNN and JUDGE HARRIS concur.