LeRoy v. ICAO

• Court: Colorado Court of Appeals
• Decided: January 2, 2025
• Docket: 24CA1235
• Status: Unpublished

Opinion

24CA1235 LeRoy v ICAO 01-02-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1235 Industrial Claim Appeals Office of the State of Colorado DD No. 9779-2024

Andrew LeRoy,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and University of Colorado,

Respondents.

ORDER SET ASIDE AND CASE REMANDED WITH DIRECTIONS

Division IV Opinion by JUDGE YUN Harris and Kuhn, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 2, 2025

Livelihood Law, LLC, David Lichtenstein, Denver, Colorado, for Petitioner

No Appearance for Respondents ¶1 In this unemployment benefits case, claimant, Andrew LeRoy,

seeks review of a final order of the Industrial Claim Appeals Office

(the Panel). The Panel affirmed the hearing officer’s decision

disqualifying LeRoy from receiving benefits based on his job

separation from the University of Colorado (CU). We set aside the

order and remand to the Panel with instructions for further

proceedings consistent with this opinion.

I. Background

¶2 CU employed LeRoy as the head coach of the men’s and

women’s ski teams and discharged him for making inappropriate

comments to female student-athletes in violation of CU’s policies.

When LeRoy applied for unemployment benefits, a deputy for the

Division of Unemployment Insurance determined that LeRoy was

disqualified from receiving benefits under section

8-73-108(5)(e)(VII), C.R.S. 2024 (precluding benefits for

terminations based on a violation of a statute or of a company rule

which resulted or could have resulted in serious damage to the

employer’s property or interests).

¶3 LeRoy requested a hearing on the deputy’s determination. At

the hearing, Kelly Leandro, CU’s Assistant Director of Employee

1 Relations, testified that CU terminated LeRoy “for a pattern of

unacceptable and inappropriate comments that were interpreted as

sexual in nature directed at student athletes, and the department

determined that to be a violation of the employment agreement that

Mr. Leroy signed on April 6th, 2021.” She further testified that

multiple complaints about LeRoy’s behavior were filed with CU’s

Office of Institutional Equity and Compliance (OIEC). Leandro also

testified that the first set of complaints occurred in October 2022,

the second set of complaints occurred in January 2023, and the

complaints were made by different individuals.

¶4 Leandro testified that after the first complaints were made in

October, CU issued a letter of reprimand to LeRoy on October 13,

2022. That letter stated that he “ha[s] been making comments to

female students that were interpreted as sexual in nature,” that he

“has created an environment in which [his] female athletes feel

uncomfortable,” and that “[t]his . . . serves as a formal reprimand

for your failure to adhere” to CU’s policy and code of conduct. The

letter also documented that LeRoy had received educational training

and warned that “you are hereby notified that any further issues

may result in action up to and including termination of your

2 employment with the University of Colorado Boulder.” Leroy’s

signature appears at the bottom of the letter, where he

acknowledged that he “received and underst[ood] the Letter of

Reprimand dated October 13, 2022.”

¶5 On January 20, 2023, according to Leandro, CU placed LeRoy

on administrative leave after receiving a second set of complaints.

While she stated she could not disclose the specifics of those

complaints, she testified that “the nature of the complaints w[as]

the same” — involving “the same pattern of unacceptable and

inappropriate comments that were interpreted as sexual in nature”

but “from different reporting parties.”

¶6 Mindy Sclaro, CU’s Assistant Athletic Director for Academic

Services, was LeRoy’s immediate supervisor. She testified that in

early October, she received complaints from two female

student-athletes concerning LeRoy’s behavior. The first individual

complained that LeRoy conducted a Zoom meeting with several

female student-athletes, some of whom did not have their cameras

on. LeRoy told the students to turn on their cameras and said, “I

want to see your pretty faces.” Another student-athlete separately

reported this incident to Sclaro, adding that LeRoy also asked one

3 of the students, “What’s up, good looking?” and said, “I don’t want

to be the last to know if you and your boyfriend break up.” Sclaro

then testified that she personally received two reports regarding

comments that LeRoy allegedly made while traveling with a

student-athlete in a van around January 19, 2023. She testified

that the complainants reported that LeRoy made a sexual comment

about his wife and “asked a student what her favorite sexual

position was.”

¶7 During LeRoy’s testimony, the hearing officer asked him if he

was aware of CU’s policy about unprofessional conduct, and LeRoy

responded that he was. When asked why he received the letter of

reprimand, he responded, “[B]ecause of information received by the

athletic department or some student athletes for comments I had

made.” The hearing officer then asked, “Did you make those

comments?” LeRoy responded, “I did make the comments leading

up to the letter of reprimand, and I was made aware of those

comments in the meeting with OIEC.” The hearing officer also

asked, “Were you aware that your employment, job position was at

risk of being terminated after that letter of reprimand?” And LeRoy

4 answered, “I was.” However, LeRoy denied making any

inappropriate comments after receiving the letter of reprimand.

¶8 Following the hearing, the hearing officer affirmed the deputy’s

decision, modifying the disqualifying subsection to section

8-73-108(5)(e)(XIV) (precluding benefits for terminations based on

rude, insolent, or offensive behavior not reasonably to be

countenanced by a customer, supervisor, or fellow worker). He first

determined that he could consider the CU employees’ hearsay

testimony about LeRoy’s comments to female student-athletes. He

then found that LeRoy “was at fault for the separation from this

employment” because he “made inappropriate comments to female

student-athletes that were sexual in nature” even after being

warned that his job was at risk of termination “if another similar

incident happened again.”

¶9 LeRoy appealed the hearing officer’s decision to the Panel,

which set aside the decision and remanded for further findings.

The Panel agreed with LeRoy’s argument that the hearing officer

had not made specific findings concerning the probative value of

hearsay evidence. The Panel noted that, under section

8-74-106(1)(f)(II), C.R.S. 2024, hearsay evidence may be considered

5 in unemployment hearings if it is sufficiently probative. The Panel

remanded for additional findings as to the probative value of

hearsay statements and “a new decision that is consistent with this

order.”

¶ 10 On remand, the hearing officer issued a corrected decision

setting forth additional findings regarding complaints that CU

received from female student-athletes in January 2023 about

inappropriate comments that LeRoy allegedly made. LeRoy again

appealed to the Panel, which again set aside the decision and

remanded to the hearing officer. The Panel determined that

evidence offered to prove that LeRoy made the January comments

“was not sufficiently probative and thus the hearing officer should

not have relied upon it.” But the Panel remanded the case for the

hearing officer to determine the proximate cause of the job

separation, stating as follows:

[I]f the hearing officer’s proximate cause finding only includes the alleged statements after the letter of reprimand, the claimant would not be at fault for the separation and would be entitled to benefits pursuant to § 8-73-108(4), C.R.S. However, since a claimant is entitled to benefits if he is unemployed through “no” fault of his own, an award is not appropriate if he is at fault for

6 one or some of the separate reasons for discharge. Section 8-73-108(1)(a). Consequently, if the hearing officer’s proximate cause finding includes both the earlier comments and the later comments, the claimant would be at fault for the separation . . . .

¶ 11 After the case was remanded, the hearing officer issued a new

decision holding that LeRoy was at fault for his job separation.

Specifically, the hearing officer concluded that “[CU] discharged

[LeRoy] because he made unprofessional and sexual comments to

female athletes in early October 2022 and because later, [CU]

received reports from student-athletes that [LeRoy] made sexually

inappropriate comments.” LeRoy again appealed to the Panel,

arguing that “the sole consequences of the earlier comments were

the October reprimand and training, not termination; thus[,] the

earlier comments could not be a proximate cause of the discharge.”

The Panel rejected LeRoy’s argument and ultimately affirmed the

hearing officer’s decision because LeRoy was terminated in part for

his “rude, insolent, or offensive” comments in October 2022. Thus,

the Panel concluded that LeRoy was not entitled to benefits because

he was “at fault for one or some of the separate reasons for his

discharge.”

7 II. Analysis

¶ 12 In this appeal, LeRoy urges us to set aside the Panel’s order

because the record does not support the hearing officer’s conclusion

that LeRoy’s October 2022 comments were a proximate cause of his

termination. We agree.

A. Legal Principles and Standard of Review

¶ 13 We may only set aside the Panel’s decision if the factual

findings are not supported by substantial evidence, if the factual

findings do not support the legal conclusion, or if the decision is

erroneous as a matter of law. § 8-74-107(4), (6), C.R.S. 2024;

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

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).

¶ 14 An individual is disqualified from receiving unemployment

benefits if the separation from employment occurred as a result of

“[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). In determining whether this

8 subsection applies, we consider “whether a reasonable person in

the position of the fellow worker and others would have found [the]

claimant’s action to be so rude, insolent, or offensive as not to be

countenanced.” Davis v. Indus. Claim Appeals Off., 903 P.2d 1243,

1245 (Colo. App. 1995).

¶ 15 The disqualifying provisions of section 8-73-108(5)(e) “must be

read in light of the express legislative intent set forth in [section

8-73-108(1)(a)] 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). “‘[F]ault’ is a term of art

which is used as a factor to determine whether the claimant or the

employer is responsible overall for the separation from

employment.” Id. “In this context, ‘fault’ has been defined as

requiring 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.

¶ 16 “[W]hether a claimant is at fault for a separation from

employment . . . must be determined on a case-by-case basis, with

due consideration given to the totality of the circumstances in each

9 particular situation.” Morris v. City & Cnty. of Denver, 843 P.2d 76,

79 (Colo. App. 1992).

B. Discussion

¶ 17 LeRoy argues that, although he “received a letter of reprimand

in October 2022 for comments he admittedly made, he was

terminated more than three months later for hearsay comments he

denied making.” LeRoy explains that the Panel already determined

that Sclaro’s testimony regarding LeRoy’s comments to a female

student-athlete in January 2023 were inadmissible hearsay and

that the hearing officer should not have relied on it. Therefore, he

contends that “it is entirely illogical that [CU] would issue [LeRoy] a

letter in October 2022 cautioning that further issues may result in

action up to and including termination, and then terminate him

months later despite the absence of any evidence supporting that

termination.”

¶ 18 A claimant’s entitlement to benefits is determined by the

reason for his separation from employment. Eckart v. Indus. Claim

Appeals Off., 775 P.2d 97, 99 (Colo. App. 1989). To ascertain the

reason for separation, “the trier of fact must evaluate the totality of

the evidence and determine the motivating factors in the employee’s

10 separation and then determine whether, based upon those factors,

[the] claimant is entitled to, or disqualified from, the receipt of

benefits.” Id.

¶ 19 We agree with LeRoy that the record does not support the

hearing officer’s finding that his comments in October 2022 were a

proximate cause of his job separation. It is undisputed that LeRoy

was issued a letter of reprimand and required to undergo

educational training because he made inappropriate comments to

female student-athletes in October. But he was not terminated as a

result of those comments. Instead, the letter of reprimand warned

LeRoy that “you are hereby notified that any further issues may

result in action up to and including termination of your

employment.” Because no admissible evidence was presented

regarding “any further issues,” the record does not support the

hearing officer’s finding that LeRoy’s October comments were the

“motivating factors” for his job separation three months later.

¶ 20 We therefore conclude that the Panel erred in affirming the

hearing officer’s finding that LeRoy’s “rude, insolent, or offensive”

comments in October 2022 were a proximate cause of his job

separation. Because this finding is not supported by substantial

11 evidence in the record, we must set aside the Panel’s ultimate legal

conclusion that LeRoy was at fault for his job separation.

III. Disposition

¶ 21 The Panel’s order is set aside, and the case is remanded to the

Panel for further proceedings consistent with this opinion. On

remand, the Panel should determine, consistent with this opinion,

whether the hearing officer’s findings and the evidence support an

award of unemployment benefits. See M & A Acquisition Corp. v.

Indus. Claim Appeals Off., 2019 COA 173, ¶ 26 (remanding to the

Panel to consider whether the findings and evidence would support

disqualifying a claimant from benefits); Indus. Claim Appeals Off. v.

Softrock Geological Servs., Inc., 2014 CO 30, ¶ 19 (remanding the

case with instructions to return it to the Panel for “proceedings

consistent with this opinion”).

JUDGE HARRIS and JUDGE KUHN concur.