25CA1309 Payne v ICAO 09-18-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1309 Industrial Claim Appeals Office of the State of Colorado DD No. 3960-2025
Austin Payne,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado,
Respondent.
ORDER AFFIRMED
Division V Opinion by JUDGE YUN Freyre and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 18, 2025
Austin Payne, Pro Se
No Appearance for Respondent ¶1 In this unemployment benefits case, the claimant, Austin
Payne, seeks review of a final order of the Industrial Claim Appeals
Office (Panel). The Panel affirmed the hearing officer’s decision
disqualifying Payne from receiving benefits based on his job
separation from Great Wolf Resorts. We affirm.
I. Background
¶2 Payne worked as a public area attendant at Great Wolf Resorts
for more than three years until his employment was terminated.
Thereafter, a deputy for the Division of Unemployment Insurance
(Division) approved Payne’s application for unemployment benefits.
¶3 Great Wolf Resorts appealed the deputy’s decision to the
Division, which then held an evidentiary hearing to determine the
reason for Payne’s discharge and whether it disqualified him from
receiving benefits under the Colorado Employment Security Act.
The hearing officer found that Great Wolf Resorts discharged Payne
because he “used profanity during a counseling session with his
supervisor.” The officer further concluded that Payne was at fault
for his termination and was disqualified from receiving benefits
under section 8-73-108(5)(e)(XIV), C.R.S. 2025. The Panel affirmed
the hearing officer’s factual findings and legal conclusions.
1 ¶4 Payne now appeals.
II. Discussion
¶5 Payne contends that Great Wolf Resorts did not prove that he
cursed or acted aggressively during the meeting with his supervisor.
Thus, he argues that the hearing officer and the Panel erred in
evaluating the evidence and making their factual findings. We
disagree.
A. Standard of Review
¶6 We may set aside the Panel’s decision only if (1) the Panel
acted without or in excess of its authority; (2) the decision was
procured by fraud; (3) the factual findings do not support the
decision; or (4) the decision is erroneous as a matter of law.
§ 8-74-107(6), C.R.S. 2025.
¶7 As the trier of fact, the hearing officer is responsible for
weighing the evidence, assessing credibility, resolving conflicts in
the evidence, and determining the inferences to be drawn from the
evidence. Hoskins v. Indus. Claim Appeals Off., 2014 COA 47, ¶ 10.
Like the Panel, we may not, on review, reweigh the evidence or
disturb the hearing officer’s credibility determinations. Id. Thus,
we are bound by the hearing officer’s findings of fact if they are
2 supported by substantial evidence in the record. § 8-74-107(4);
Mesa Cnty. Pub. Libr. Dist. v. Indus. Claim Appeals Off., 2017 CO
78, ¶ 17. However, we review de novo ultimate conclusions of fact
and ultimate legal conclusions. Simon v. Indus. Claim Appeals Off.,
2023 COA 74, ¶ 19.
B. Applicable Law
¶8 A claimant’s eligibility for unemployment benefits depends on
the reason for the separation from employment. Id. at ¶ 20. In
making this determination, “the trier of fact must evaluate the
totality of the evidence and determine the motivating factors in the
employee’s separation and then determine whether, based upon
those factors, [the] claimant is entitled to, or disqualified from, the
receipt of benefits.” Eckart v. Indus. Claim Appeals Off., 775 P.2d
97, 99 (Colo. App. 1989).
¶9 An individual is disqualified from receiving unemployment
benefits if, as relevant here, 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). In determining
whether this subsection applies, the hearing officer and Panel must
3 apply an objective standard by considering “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).
¶ 10 A worker, like Payne, can receive benefits only if he is
unemployed through no fault of his own. § 8-73-108(1)(a); see
Bara v. Indus. Claim Appeals Off., 2023 COA 19, ¶ 11. For
purposes of the unemployment statutes, fault does not require
culpability; rather, it requires “some volitional act” or that the
employee “exercised some control over the circumstances resulting
in the discharge from employment.” Cath. Health Initiatives Colo. v.
Indus. Claim Appeals Off., 2021 COA 48, ¶ 13 (quoting Gonzales v.
Indus. Comm’n, 740 P.2d 999, 1003 (Colo. 1987)). Whether a
claimant is at fault for termination from employment must be
determined “on a case-by-case basis, with due consideration given
to the totality of the circumstances in each particular situation.”
Morris v. City & County of Denver, 843 P.2d 76, 79 (Colo. App.
1992).
4 C. Analysis
¶ 11 The hearing officer found that Payne was called into a
counseling session with his supervisor after throwing trash bags
near, but not into, the trash compactor. The officer found that
Payne was frustrated and “used the f-word multiple times,” and
that such behavior was rude, insolent, and offensive. Further, the
officer found that “no persuasive evidence was offered to determine
the claimant did not exercise choice or control” over his actions.
And the officer found that based on the totality of the
circumstances, a similarly situated reasonable customer,
supervisor, or fellow worker would find the behavior to be rude,
insolent, or offensive and that the behavior should not have been
excused or tolerated.
¶ 12 The record contains substantial evidence supporting the
hearing officer’s findings. Payne’s supervisor testified that she met
with him to discuss corrective action after he was seen throwing
trash near the dumpster instead of placing it in the trash
compactor. She testified that during the meeting, Payne was
“aggressive” and repetitively used inappropriate language, including
the word “fucking.” She estimated that such language was used
5 four times during their conversation. And she clarified that Great
Wolf Resorts discharged Payne for his inappropriate behavior and
use of profanity during their meeting, not for his failure to put the
trash in the compactor.
¶ 13 Payne argues that the hearing officer erred by finding that he
had used profanity during the meeting because he testified that he
did not remember using such language. Indeed, Payne testified
that he “argue[d] a little bit” and remembered “being really
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25CA1309 Payne v ICAO 09-18-2025
COLORADO COURT OF APPEALS
Court of Appeals No. 25CA1309 Industrial Claim Appeals Office of the State of Colorado DD No. 3960-2025
Austin Payne,
Petitioner,
v.
Industrial Claim Appeals Office of the State of Colorado,
Respondent.
ORDER AFFIRMED
Division V Opinion by JUDGE YUN Freyre and Pawar, JJ., concur
NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced September 18, 2025
Austin Payne, Pro Se
No Appearance for Respondent ¶1 In this unemployment benefits case, the claimant, Austin
Payne, seeks review of a final order of the Industrial Claim Appeals
Office (Panel). The Panel affirmed the hearing officer’s decision
disqualifying Payne from receiving benefits based on his job
separation from Great Wolf Resorts. We affirm.
I. Background
¶2 Payne worked as a public area attendant at Great Wolf Resorts
for more than three years until his employment was terminated.
Thereafter, a deputy for the Division of Unemployment Insurance
(Division) approved Payne’s application for unemployment benefits.
¶3 Great Wolf Resorts appealed the deputy’s decision to the
Division, which then held an evidentiary hearing to determine the
reason for Payne’s discharge and whether it disqualified him from
receiving benefits under the Colorado Employment Security Act.
The hearing officer found that Great Wolf Resorts discharged Payne
because he “used profanity during a counseling session with his
supervisor.” The officer further concluded that Payne was at fault
for his termination and was disqualified from receiving benefits
under section 8-73-108(5)(e)(XIV), C.R.S. 2025. The Panel affirmed
the hearing officer’s factual findings and legal conclusions.
1 ¶4 Payne now appeals.
II. Discussion
¶5 Payne contends that Great Wolf Resorts did not prove that he
cursed or acted aggressively during the meeting with his supervisor.
Thus, he argues that the hearing officer and the Panel erred in
evaluating the evidence and making their factual findings. We
disagree.
A. Standard of Review
¶6 We may set aside the Panel’s decision only if (1) the Panel
acted without or in excess of its authority; (2) the decision was
procured by fraud; (3) the factual findings do not support the
decision; or (4) the decision is erroneous as a matter of law.
§ 8-74-107(6), C.R.S. 2025.
¶7 As the trier of fact, the hearing officer is responsible for
weighing the evidence, assessing credibility, resolving conflicts in
the evidence, and determining the inferences to be drawn from the
evidence. Hoskins v. Indus. Claim Appeals Off., 2014 COA 47, ¶ 10.
Like the Panel, we may not, on review, reweigh the evidence or
disturb the hearing officer’s credibility determinations. Id. Thus,
we are bound by the hearing officer’s findings of fact if they are
2 supported by substantial evidence in the record. § 8-74-107(4);
Mesa Cnty. Pub. Libr. Dist. v. Indus. Claim Appeals Off., 2017 CO
78, ¶ 17. However, we review de novo ultimate conclusions of fact
and ultimate legal conclusions. Simon v. Indus. Claim Appeals Off.,
2023 COA 74, ¶ 19.
B. Applicable Law
¶8 A claimant’s eligibility for unemployment benefits depends on
the reason for the separation from employment. Id. at ¶ 20. In
making this determination, “the trier of fact must evaluate the
totality of the evidence and determine the motivating factors in the
employee’s separation and then determine whether, based upon
those factors, [the] claimant is entitled to, or disqualified from, the
receipt of benefits.” Eckart v. Indus. Claim Appeals Off., 775 P.2d
97, 99 (Colo. App. 1989).
¶9 An individual is disqualified from receiving unemployment
benefits if, as relevant here, 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). In determining
whether this subsection applies, the hearing officer and Panel must
3 apply an objective standard by considering “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).
¶ 10 A worker, like Payne, can receive benefits only if he is
unemployed through no fault of his own. § 8-73-108(1)(a); see
Bara v. Indus. Claim Appeals Off., 2023 COA 19, ¶ 11. For
purposes of the unemployment statutes, fault does not require
culpability; rather, it requires “some volitional act” or that the
employee “exercised some control over the circumstances resulting
in the discharge from employment.” Cath. Health Initiatives Colo. v.
Indus. Claim Appeals Off., 2021 COA 48, ¶ 13 (quoting Gonzales v.
Indus. Comm’n, 740 P.2d 999, 1003 (Colo. 1987)). Whether a
claimant is at fault for termination from employment must be
determined “on a case-by-case basis, with due consideration given
to the totality of the circumstances in each particular situation.”
Morris v. City & County of Denver, 843 P.2d 76, 79 (Colo. App.
1992).
4 C. Analysis
¶ 11 The hearing officer found that Payne was called into a
counseling session with his supervisor after throwing trash bags
near, but not into, the trash compactor. The officer found that
Payne was frustrated and “used the f-word multiple times,” and
that such behavior was rude, insolent, and offensive. Further, the
officer found that “no persuasive evidence was offered to determine
the claimant did not exercise choice or control” over his actions.
And the officer found that based on the totality of the
circumstances, a similarly situated reasonable customer,
supervisor, or fellow worker would find the behavior to be rude,
insolent, or offensive and that the behavior should not have been
excused or tolerated.
¶ 12 The record contains substantial evidence supporting the
hearing officer’s findings. Payne’s supervisor testified that she met
with him to discuss corrective action after he was seen throwing
trash near the dumpster instead of placing it in the trash
compactor. She testified that during the meeting, Payne was
“aggressive” and repetitively used inappropriate language, including
the word “fucking.” She estimated that such language was used
5 four times during their conversation. And she clarified that Great
Wolf Resorts discharged Payne for his inappropriate behavior and
use of profanity during their meeting, not for his failure to put the
trash in the compactor.
¶ 13 Payne argues that the hearing officer erred by finding that he
had used profanity during the meeting because he testified that he
did not remember using such language. Indeed, Payne testified
that he “argue[d] a little bit” and remembered “being really
frustrated” but did not recall what he said during the meeting with
his supervisor. But it was within the hearing officer’s discretion, as
the fact finder, to assess the witnesses’ credibility and weigh
Payne’s testimony against that of his supervisor. See Hoskins,
¶ 10. And we may not reweigh that evidence on appeal. Id.
Accordingly, because the hearing officer’s finding that Payne used
profanity during the meeting is supported by the record, we are
bound by it. Id.; § 8-74-107(4).
¶ 14 Payne also argues that the hearing officer erred by finding that
his behavior caused his termination because Great Wolf Resorts did
not prove that he could have placed the trash in the compactor;
Payne claims it was full at the time he threw the trash. However,
6 the hearing officer specifically found that Payne was discharged
“because he used profanity” during the meeting with his
supervisor — behavior deemed “rude, insolent, or offensive
behavior” under section 8-73-108(5)(e)(XIV). Thus, whether the
trash compactor was full at the time Payne threw the trash bags
had no bearing on whether he was disqualified from receiving
unemployment benefits under section 8-73-108(5)(e)(XIV).
¶ 15 Based on the foregoing, we discern no basis to set aside the
determination that Payne was at fault for his job termination and
disqualified from benefits under section 8-73-108(5)(e)(XIV). See
§ 8-74-107(6).
III. Disposition
¶ 16 We affirm the Panel’s order.
JUDGE FREYRE and JUDGE PAWAR concur.