Nakagaki v. ICAO

• Court: Colorado Court of Appeals
• Decided: April 16, 2026
• Docket: 25CA2272
• Status: Unpublished

Opinion

25CA2272 Nakagaki v ICAO 04-16-2026

COLORADO COURT OF APPEALS

Court of Appeals No. 25CA2272 Industrial Claim Appeals Office of the State of Colorado DD No. 16035-2025

Brittany Nakagaki,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Eastern Rio Blanco County Health Services District, d/b/a Pioneers Medical Center,

Respondents.

ORDER AFFIRMED

Division V Opinion by JUDGE TOW Welling and Lipinsky, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced April 16, 2026

Brittany Nakagaki, Pro Se

No Appearance for Respondent Industrial Claim Appeals Office

Bechtel & Santo, Michael C. Santo, Keely McCabe, Grand Junction, Colorado, for Respondent Eastern Rio Blanco County Health Services District ¶1 Brittany Nakagaki appeals an order denying her claim for

unemployment benefits. We affirm.

I. Background

¶2 Nakagaki worked as a hospital sterilization technician until

her employer, East Rio Blanco County Health Services District

(Employer), discharged her. Shortly thereafter, a deputy for the

Division of Unemployment Insurance (Division) granted Nakagaki’s

claim for unemployment benefits. Employer appealed that decision,

and the Division conducted an evidentiary hearing regarding the

reasons for Nakagaki’s job separation.

¶3 After the hearing, the hearing officer found that Employer

discharged Nakagaki “for not following instructions given to her, not

following sterilization procedures, and refusing to do work she was

asked to do.” He further found that Nakagaki “was reasonably

aware of the standards of her position and failed to meet them on

multiple occasions.” The hearing officer concluded that Nakagaki

was disqualified from receiving unemployment benefits for failing to

meet “established job performance or other defined standards”

under section 8-73-108(5)(e)(XX), C.R.S. 2025.

1 ¶4 Nakagaki appealed to the Industrial Claim Appeals Office

(Panel). The Panel affirmed, holding that the hearing officer’s

factual findings “support the conclusion that [Nakagaki] is at fault

for the separation from employment, and the disqualification is

therefore warranted pursuant to [section] 8-73-108(5)(e)(XX).”

II. Standard of Review and Legal Principles

¶5 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 do not support its

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

§ 8-74-107, C.R.S. 2025. Evidence is substantial if it is “probative,

credible, and competent, of a character which 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).

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

receiving benefits if their “failure to meet established job

performance or other defined standards” caused their job

2 separation. To evaluate cause, the hearing officer considers the

totality of the evidence and determines the motivating factors in the

employee’s separation. Eckart v. Indus. Claim Appeals Off., 775

P.2d 97, 99 (Colo. App. 1989). “All that is required to establish a

disqualification pursuant to [section] 8-73-108(5)(e)(XX) is that

claimant did not do the job for which [they were] hired and which

[they] knew was expected of [them].” Pabst v. Indus. Claim Appeals

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

¶7 The disqualifying provisions of section 8-73-108(5)(e)(XX)

“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)). Thus, even if the hearing

officer’s findings may support a disqualification under that

subsection, a claimant 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.

3 III. Discussion

A. Established Job Performance Standards

¶8 Nakagaki does not challenge the hearing officer’s finding that

she was terminated for failing to perform tasks as instructed.

However, we discern that she argues that the hearing officer (and

subsequently, the Panel) erred by finding that her nonperformance

disqualified her because, according to Nakagaki, Employer often

instructed her to perform tasks incorrectly, and “[r]efusing to

perform an unsafe act does not constitute misconduct or

insubordination.” We are not persuaded by this argument because

the hearing officer did not find that she was disqualified for

misconduct or insubordination. Rather, he found that she was

disqualified for failing to meet established job performance or other

defined standards. We perceive no error in the hearing officer’s

findings or analysis.

¶9 The hearing officer found that Employer set forth explicit

standards for sterilizing tools and that Nakagaki violated those

standards. Specifically, the hearing officer found that, “[o]n June

13, 2024, [Nakagaki] was told ahead of time which cycle she needed

to put instruments on to sterilize them[,] [but she] put the

4 instruments on the wrong cycle and they had to be rewashed.” The

hearing officer also found that, “[o]n June 18, 2024, [Nakagaki]

used the wrong cycle and wrong washer and instruments had to be

rewashed.” And “on June 19, 2024, [Nakagaki] was told that

Thompson retractors needed to be washed in washer #3[,] [but she]

did not follow this instruction and the instruments had to be

rewashed.” Finally, the hearing officer found that, on June 12 and

June 17, 2024, Nakagaki failed to wash trays as instructed.

Substantial evidence in the record supports these findings.

¶ 10 At the hearing, Employer presented testimony from Jill

Adcock, Employer’s Director of Compliance. Adcock testified

regarding each of the foregoing incidents, noting that Nakagaki had

received direct communication regarding Employer’s sterilization

standards and failed to meet them on those occasions. Though

Nakagaki’s testimony largely contradicted Adcock’s on these points,

we do not reweigh the evidence or second-guess the hearing officer’s

credibility determinations. Sanchez v. Indus. Claim Appeals Off.,

2017 COA 71, ¶ 57. Substantial evidence supports the hearing

officer’s findings, and those findings, in turn, support the hearing

officer’s and Panel’s ultimate conclusions that Nakagaki was

5 disqualified from receiving benefits under section 8-73-108(5)(e)(XX)

and was at fault for her employment separation.

¶ 11 Though the hearing officer’s evidentiary factual findings

arguably could have supported a disqualification under

section 8-73-108(5)(e)(VI), which disqualifies claimants for

“[i]nsubordination such as: [d]eliberate disobedience of a reasonable

instruction of an employer or an employer’s duly authorized

representative,” neither the hearing officer nor the Panel invoked

that subsection. The hearing officer has broad discretion in

determining which of multiple potentially applicable disqualification

subsections it will apply, and disqualification is appropriate when

employment separation occurs for any of the reasons articulated in

subsection (5)(e). § 8-73-108(5)(e); see Mountain States Tel. & Tel.

Co. v. Indus. Comm’n, 697 P.2d 418, 420 (Colo. App. 1985) (the

hearing officer has broad discretion in applying statutory

subsections). Because Nakagaki was not disqualified for

insubordination, whether she actually was insubordinate makes no

difference to our disposition.

6 B. Public Policy Exception

¶ 12 Nakagaki further argues that she is entitled to a full benefits

award because Employer’s sterilization standards and protocols

conflicted with applicable “regulations” governing sterilization, and

public policy “protect[s] employees who refuse to engage in unsafe,

unethical, or unlawful conduct.” In connection with this argument,

Nakagaki references multiple cases, most of which concern other

states’ public policies and thus do not control here.

¶ 13 The two Colorado cases she cites — Martin Marietta Corp. v.

Lorenz, 823 P.2d 100 (Colo. 1992), and Jaynes v. Centura Health

Corp., 148 P.3d 241, 243 (Colo. App. 2006) — are unhelpful to her.

Martin Marietta determined that Colorado recognizes a cause of

action for wrongful discharge pursuant to a public policy exception

to the at-will employment doctrine. 823 P.2d at 108. Jaynes

applied Martin Marietta. 148 P.3d at 243. Neither applies here.

¶ 14 Because “wrongful discharge” is a cause of action independent

from the Employment Security Act, neither the Division nor the

Panel has jurisdiction over such a claim. §§ 8-71-102(1), 8-74-102,

8-74-103, 8-74-104, C.R.S. 2025. Thus, they could not and did not

adjudicate any wrongful discharge claim Nakagaki may have

7 asserted against Employer. Nakagaki would need to bring this

claim in a trial court of general jurisdiction. Colo. Const. art. VI,

§ 9(1); §§ 8-71-102(1), 8-74-102, 8-74-103, 8-74-104. We cannot

adjudicate it now, as no trial court has ruled on the claim; we are

an appellate court that cannot adjudicate claims in the first

instance. § 13-4-102, C.R.S. 2025; see Doe v. Wellbridge Club

Mgmt. LLC, 2022 COA 137, ¶ 31 (the Colorado Court of Appeals is

“a court of review, not of first view”).

¶ 15 Nor may we otherwise apply wrongful discharge principles

here because the Colorado Supreme Court has expressly held that

“principles concerning wrongful discharge . . . are not determinative

of the entitlement and ‘fault’ issues in an unemployment

compensation benefits case.” Keil v. Indus. Claim Appeals Off., 847

P.2d 235, 239 (Colo. App. 1993) (noting that the unemployment

statutory scheme is an organic statute, “basically standing alone,”

and that Colorado courts have consistently “refused to engraft”

other law onto it). Accordingly, we reject Nakagaki’s public policy

argument.

8 C. Hazardous Working Conditions

¶ 16 To the extent Nakagaki argues that she is entitled to a full

benefits award pursuant to section 8-73-108(4)(c), that argument

also fails. Subsection (4)(c) provides for a full benefits award when

the employee separated from a work environment as a result of

“[u]nsatisfactory or hazardous working conditions.”

§ 8-73-108(4)(c); see Yotes, Inc. v. Indus. Claim Appeals Off., 2013

COA 124, ¶ 25 (“Under section 8-73-108(4)(c), if the [Division]

determines that a person has been separated from a job as the

result of unsatisfactory or hazardous working conditions, it must

award that person full benefits.”) Though Nakagaki makes no

express reference to subsection (4)(c), she contends that Employer

fostered hazardous working conditions and thereby unnecessarily

exposed employees to contaminants. She further contends that

Employer terminated her, in part, in retaliation for raising concerns

about this.

¶ 17 Because Nakagaki represents herself in this matter, we

construe her argument liberally. See Cikraji v. Snowberger, 2015

COA 66, ¶ 10. In so doing, we discern that she invokes

subsection (4)(c)’s substance. We thus analyze her argument

9 through its lens. See id. (We address a pro se litigant’s arguments

“to the extent we can discern them.”); see also People v. Cali, 2020

CO 20, ¶ 34 (courts elevate substance over form when analyzing a

pro se litigant’s pleading).

¶ 18 Nakagaki contends that, because Employer stored personal

protective equipment (PPE) like shoe covers, gowns, and gloves “at

the back of the decontamination room[,]” accessing it required

walking through the “soiled decontamination area” unprotected.

She states that Employer terminated her because, among other

reasons, she asked that the PPE be moved “from the back of the

room to the front.” Nakagaki argues that the hearing officer and

Panel erred by failing to find that her employment separation

resulted from her report of a hazardous working condition. We

disagree.

¶ 19 Nakagaki bore the burden of proving that a hazardous

condition resulted in her employment separation. See Ward v.

Indus. Claim Appeals Off., 916 P.2d 605, 607-08 (Colo. App. 1995)

(Claimant “must present evidence to justify the acts which led to

the separation and show that [they are] entitled to benefits under

the provisions of § 8-73-108(4).”). Significantly, it is undisputed

10 that the hearing officer provided Nakagaki with a sufficient

opportunity to present her evidence. Indeed, at the close of her

hearing testimony, the hearing officer asked her, “Is there anything

else related to how this separation occurred that you have not

testified about yet?” Nakagaki responded, “No.”

¶ 20 During her testimony, Nakagaki stated that she raised a

concern about PPE placement to her supervisor. Specifically,

Nakagaki testified that she told her supervisor that, “in order to

keep everything as sterile as possible, [the PPE] really should be at

the front of [the decontamination area] so we’re not walking through

all of the soiled area to get to the PPE.” Nakagaki then testified that

her supervisor “directed [her] who to talk to and where to go” with

her concern. Nakagaki did not testify that her supervisor retaliated

against her for raising this concern, nor did she otherwise offer any

evidence that Employer terminated her in connection with it. To

the contrary, she suggested that her supervisor assisted her in

processing her concern.

¶ 21 As noted above, we may not reweigh any evidence or

second-guess the hearing officer’s credibility determinations.

Sanchez, ¶ 57. Even if we could, we perceive no basis on which the

11 hearing officer could have found a causal connection between a

hazardous condition related to the placement of PPE and

Nakagaki’s employment separation.

¶ 22 Nakagaki also argues that Employer instructed her to “use

broken parts from [one] washer in a washer that was working,” and

that she “refused” for reasons including “employee safety” concerns.

She argues that “failure to follow this specific instruction was a

reason” Employer discharged her. However, at the hearing, she did

not testify that she refused to follow the instruction, nor did she

testify that swapping parts from one washer to use in another

constituted a safety hazard. Rather, Nakagaki testified that she

engaged in a “conversation about a washer that was down and

swapping the rack.” She testified that she didn’t “refus[e] to do

anything,” but rather expressed “a concern that since the washer

was down, parts of that washer might not work appropriately.”

Nakagaki did not testify that Employer discharged her in connection

with this concern. Again, we perceive no basis on which the

hearing officer could have found that a hazardous condition related

to exchanging washer parts resulted in Nakagaki’s employment

separation.

12 D. Additional Issues

¶ 23 Nakagaki also argues that she “experienced retaliation in

many forms” apart from discharge, including denying her employee

housing, fomenting resentment amongst her colleagues, and

forbidding her from retrieving a pair of shoes from the workplace

post-discharge. However, Nakagaki does not explain how any of

these incidents related to her discharge, and we discern no obvious

connection. Because this argument is insufficiently developed, we

decline to further consider it. See People v. Wallin, 167 P.3d 183,

187 (Colo. App. 2007) (declining to address perfunctory, conclusory

arguments).

¶ 24 Finally, we decline to consider Nakagaki’s undeveloped

suggestion that the hearing officer (and subsequently, the Panel)

erred by concluding that she was disqualified from receiving

benefits because Employer produced no evidence of (1) written

disciplinary reports documenting her failure to follow instructions

or (2) progressive disciplinary actions. Again, Nakagaki fails to

explain how either alleged evidentiary deficiency requires that we

set aside the Panel’s order, nor does she cite any legal authority

supporting her argument.

13 IV. Disposition

¶ 25 We affirm the Panel’s order.

JUDGE WELLING and JUDGE LIPINSKY concur.