Melano v. ICAO

• Court: Colorado Court of Appeals
• Decided: January 30, 2025
• Docket: 24CA1351
• Status: Unpublished

Opinion

24CA1351 Melano v ICAO 01-30-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1351 Industrial Claim Appeals Office of the State of Colorado DD No. 11714-2024

Richard Melano,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Stonebridge Hospitality Association LLC,

Respondents.

ORDER AFFIRMED

Division IV Opinion by JUDGE GROVE Harris and Pawar, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced January 30, 2025

Richard Melano, Pro Se

No Appearance for Respondents ¶1 In this unemployment benefits case, Richard Melano appeals

the Industrial Claim Appeals Office (Panel) order affirming a hearing

officer’s decision disqualifying him from receiving unemployment

benefits. We affirm the Panel’s order.

I. Background

¶2 Stonebridge Hospitality Association LLC employed Melano as a

shuttle driver from January 2023 to January 2024, when he was

terminated for missing three consecutive shifts without giving

adequate notice to his employer. Melano applied for unemployment

benefits, and a deputy for the Division of Unemployment Insurance

denied his application.

¶3 Melano appealed the deputy’s decision. After an evidentiary

hearing, the hearing officer affirmed the denial of benefits under

section 8-73-108(5)(e)(XX), C.R.S. 2024 (disqualification for other

reasons, including excessive tardiness or absenteeism). The Panel

affirmed that determination.

II. Discussion

¶4 Representing himself on appeal, Melano essentially challenges

the hearing officer’s factual findings. He asserts that he was sick

and on medication that prevented him from driving when his

1 employment was terminated. After a thorough review of the record,

we affirm the Panel’s order.

A. Legal Principles and Standard of Review

¶5 Workers can receive unemployment benefits only if

unemployed through no fault of their own. See Debalco Enters., Inc.

v. Indus. Claim Appeals Off., 32 P.3d 621, 623 (Colo. App. 2001).

Determining whether a claimant is at fault for an employment

separation requires a case-specific consideration of the totality of

the circumstances using an objective standard. Morris v. City &

Cnty. of Denver, 843 P.2d 76, 79 (Colo. App. 1992).

¶6 We will uphold the Panel’s decision unless the findings of fact

do not support the decision or the decision is erroneous as a matter

of law. § 8-74-107(6)(c)-(d), C.R.S. 2024; see Mesa Cnty. Pub. Libr.

Dist. v. Indus. Claim Appeals Off., 2017 CO 78, ¶ 17.

B. Analysis

¶7 Section 8-73-108(5)(e)(XX) disqualifies a claimant from

benefits “for other reasons including, but not limited to, excessive

tardiness or absenteeism or failure to meet established job

performance or other defined standards.” A claimant is properly

disqualified under this subsection if he knew what was expected of

2 him and failed to “satisfactorily perform the job thereafter.” Pabst v.

Indus. Claim Appeals Off., 833 P.2d 64, 64-65 (Colo. App. 1992).

When a worker is discharged because of alleged excessive tardiness

or absenteeism, we apply the “reasonable and ordinary meaning” of

“excessive.” Gonzales v. Indus. Comm’n, 740 P.2d 999, 1004 (Colo.

1987).

¶8 The hearing officer determined that Melano missed three

consecutive shifts because he traveled to Iowa to visit family. He

concluded that the absences were “not justified” and were

“excessive.” Those conclusions are supported by the evidence.

¶9 The record shows that after being excused from work for a

period in November and December, Melano told his supervisor that

he was available to return to work at the end of December. He was

scheduled for three shifts beginning on December 30, 2023.

Although he had notice of the shifts, he neither came to work nor

obtained approval for his absence.

¶ 10 At the hearing, Melano admitted that he missed the three

shifts because he took a trip to Iowa to visit family. But he testified

that he could not have worked the shifts in any event because he

3 was taking medication that made him drowsy and was experiencing

severe coughing spasms.

¶ 11 A representative of Stonebridge submitted evidence of the

company’s absenteeism policy. The policy provides that employees

who “have two ‘no-call, no-shows’ within a six month period” are

subject to termination, and employees who have “three successive

‘no-calls, no-shows’ [are] deemed to have voluntarily resigned.” The

representative testified that after Melano missed his three shifts,

Stonebridge sent him a termination letter referencing the policy.

¶ 12 On appeal, Melano disputes his employer’s testimony and the

hearing officer’s findings. But we may not reweigh the factual

record and enter findings of our own or draw inferences different

from those of the hearing officer. The hearing officer weighed the

competing factual evidence and found that Melano was terminated

for three consecutive absences without notifying his employer.

Because this was a reasonable inference from the record, we are

bound by the factual finding. See Pero v. Indus. Claim Appeals Off.,

46 P.3d 484, 486 (Colo. App. 2002).

¶ 13 Nor do we see any legal error. Applying the plain and ordinary

meaning of the term “excessive,” the hearing officer found that,

4 under the totality of the circumstances, three consecutive

unexcused absences is excessive. And the record shows that three

consecutive absences in this situation was grounds for termination

under the employee handbook.

¶ 14 Having reviewed the record evidence and considering the

applicable standard of review, we perceive no basis for reversing the

Panel’s order upholding the denial of benefits under section 8-73-

108(5)(e)(XX).

III. Disposition

¶ 15 The Panel’s order is affirmed.

JUDGE HARRIS and JUDGE PAWAR concur.