Peavey v. ICAO

• Court: Colorado Court of Appeals
• Decided: May 29, 2025
• Docket: 24CA1963
• Status: Unpublished

Opinion

24CA1963 Peavey v ICAO 05-29-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA1963 Industrial Claim Appeals Office of the State of Colorado DD No. 16316-2024

Linda Peavey,

Petitioner,

v.

Industrial Claim Appeals Office of the State of Colorado and Summit County Government,

Respondents.

ORDER AFFIRMED

Division VI Opinion by JUDGE KUHN Welling and Schutz, JJ., concur

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced May 29, 2025

Linda Peavey, Pro Se

No Appearance for Respondent Industrial Claim Appeals Office

Jeffrey L. Huntley, County Attorney, Toby Weiner, Assistant County Attorney, Breckenridge, Colorado; Dagner Schluter Werber LLC, Leslie L. Schluter, Greenwood Village, Colorado, for Respondent Summit County Government ¶1 Linda Peavey appeals the denial of her application for

unemployment benefits. We affirm.

I. Background

¶2 Peavey worked for Summit County as a human resources

director from January 2023 until May 2024 when she was

terminated from her job. Peavey’s termination pertained to a paid

leave policy (PPFML program) she put into effect in January 2024

without receiving approval from the Summit County Board of

County Commissioners (BOCC). Although the BOCC approved the

program on February 13, 2024, the BOCC then repealed the

program two weeks later. Because Peavey had already begun

granting leave under the PPFML program without receiving BOCC

approval, her supervisor, Andy Atencio, sent an email to all

employees that the launch of certain policies, including the PPFML

program, would be postponed. Atencio then attempted to work with

Peavey and the county attorneys to replace or revise the policies.

¶3 On April 24, Peavey sent emails to five employees who had

been granted leave under the PPFML program and informed them

that their leave had been canceled. She copied Atencio, the county

manager, the finance director, and the county attorneys on these

1 emails. When Atencio received the first three emails, he told Peavey

to stop sending the emails. But Peavey subsequently notified the

other two employees that their leave had been canceled as well.

Roughly two weeks later, Summit County discharged Peavey

because “without direction” she “canceled pending applications

[under the PPFML program] and sen[t] notice to pending applicants

of the same.”

¶4 Peavey applied for unemployment benefits, and a deputy for

the Division of Unemployment Insurance denied her application

under section 8-73-108(5)(e)(VI), C.R.S. 2024. That provision states

that an employer is not liable for benefits when an employee is

terminated for insubordination, which includes the “[d]eliberate

disobedience of a reasonable instruction of an employer.” Id. The

deputy determined that Peavey “intentionally did not follow direct

orders from leadership regarding a new policy and sent an email

telling applicants that it had been canceled rather than holding off

from further emails as requested.”

¶5 Peavey appealed the deputy’s decision and requested a

hearing. After an evidentiary hearing, the hearing officer affirmed

the denial of benefits and added that section 8-73-108(5)(e)(XIV)

2 also barred Peavey’s request for benefits. Under that provision, an

employer is not liable for benefits if an employee is terminated for

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

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

worker.” Id. The Industrial Claim Appeals Office (Panel) affirmed

the hearing officer’s decision.

II. Analysis

¶6 Representing herself in this appeal, Peavey maintains, as she

did at the hearing, that she was merely following orders from

Atencio to send the emails advising employees that the PPFML

program was canceled. She asserts that all the emails were “polite

and cordial” and not rude or offensive. However, she admits that

Atencio asked her to stop sending the emails before she sent the

final two emails.

¶7 As we understand it, Peavey urges us to set aside the Panel’s

order because (1) her counsel didn’t adequately represent her

during the appeal to the Panel; (2) the hearing officer violated her

due process rights; and (3) the hearing officer’s decision was not

supported by the evidence.

3 ¶8 After a thorough review of the record, we conclude that

substantial evidence supported the decision that Peavey deliberately

disobeyed reasonable instructions, acted insubordinately, and was

therefore disqualified from receiving unemployment benefits.

Accordingly, we reject each of her contentions and affirm the Panel’s

order.

A. Legal Principles and Standard of Review

¶9 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. Morris v. City & Cnty. of Denver, 843 P.2d 76,

79 (Colo. App. 1992). 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.

¶ 10 An employee may be disqualified from receiving unemployment

benefits for multiple reasons. See § 8-73-108(5)(e) (“[I]f a separation

4 from employment occurs for any of the [reasons listed in section

8-73-108(5)(e)(I)-(XXIV)], the employer . . . must not be charged for

benefits which are attributable to such employment.”).

¶ 11 Because Peavey appears pro se, “we liberally construe [her]

filings while applying the same law and procedural rules applicable

to a party represented by counsel.” Gandy v. Williams, 2019 COA

118, ¶ 8. Accordingly, we seek to effectuate the substance, rather

than the form, of her briefing. People v. Cali, 2020 CO 20, ¶ 34. We

will not, however, rewrite her arguments or act as an advocate on

her behalf. Johnson v. McGrath, 2024 COA 5, ¶ 10.

B. Attorney Error

¶ 12 Peavey contends that the attorney who represented her during

the appeal to the Panel erred in a number of ways, primarily by

omitting from her brief the argument that her due process rights

had been violated during the hearing. She contends that “[a]ttorney

error can be claimed as a basis for appeal in a benefits case” if the

error was “significant enough to have substantially impacted the

outcome of the initial decision and resulted in denial of benefits

that would have otherwise been granted when the attorney error

falls below a reasonable standard of legal practice.” But Peavey

5 points us to no legal authority that supports this argument, and the

general rule in civil cases is that ineffective assistance of counsel is

not a basis for appeal or retrial in an unemployment benefits case.

See, e.g., Nelson v. Boeing Co., 446 F.3d 1118, 1120 (10th Cir.

2006) (recognizing that “the only context in which courts have

recognized a constitutional right to effective assistance of counsel in

[federal] civil litigation is in immigration cases.”); see also

§ 8-74-107(6) (listing the specific grounds on which the Panel’s

order maybe be set aside). C.f. A.R. v. D.R., 2020 CO 10, ¶ 47

(recognizing that the statutory right to counsel in dependency and

neglect cases includes the right to effective assistance of counsel).

Accordingly, Peavey does not articulate a cognizable basis upon

which we may disturb the Panel’s determination.

C. Peavey’s Due Process Claim Fails

¶ 13 Even if Peavey’s due process argument had been included in

her appeal to the Panel, it would have failed on the merits. In this

appeal, Peavey contends her rights to due process were violated

during the hearing because the hearing officer (1) gave Summit

County more time than her to present testimony; (2) did not allow

her to testify regarding all of her exhibits; and (3) did not inform her

6 that she could request a continuance. But our review of the

hearing transcript shows that she had a full and fair opportunity to

present evidence, cross-examine witnesses, give rebuttal testimony,

and make final statements.

¶ 14 Peavey takes issue with the number of pages of transcript

dedicated to her employer’s testimony versus her testimony. But

we note that, when it was Peavey’s turn to testify, the hearing officer

asked her, “So, Ms. Peavey, what happened here?” Peavey then

testified, uninterrupted, for five full pages of the transcript. While

she claims she did not have a sufficient opportunity to cross-

examine witnesses, the hearing officer asked her twice if she wanted

to cross-examine particular witnesses, but she declined.

Additionally, while Peavey did not testify as to all her exhibits, it

does appear that her exhibits were included in the record, which

was confirmed when she emailed the Panel to verify that fact.

¶ 15 Contrary to Peavey’s contentions, while the hearing officer

must oversee development of the record at the hearing, the hearing

officer has no duty to examine a claimant “exhaustively” or “develop

the record concerning [the claimant’s] version of the events and

reasons surrounding [the] separation.” See Wafford v. Indus. Claim

7 Appeals Off., 907 P.2d 741, 743 (Colo. App. 1995). Likewise, the

hearing officer is not required to address specific evidence or

testimony they do not find persuasive. Tilley v. Indus. Claim

Appeals Off., 924 P.2d 1173, 1177 (Colo. App. 1996).

¶ 16 Rather, because fundamental fairness is the essence of due

process in unemployment compensation proceedings, the hearing

officer must afford the claimant an opportunity to develop fully and

fairly their own record. Wafford , 907 P.2d at 743-44. Accordingly,

“for the due process and fair hearing standards to be met in these

hearings, each party must be apprised of the evidence submitted or

to be considered, and must be given opportunity to inspect

documents, to cross-examine witnesses, and to offer evidence in

explanation or rebuttal.” Id. Given all of the foregoing, it appears

Peavey had that opportunity. Thus, we are not persuaded that any

due process violation occurred here.

D. Substantial Evidence Supports the Decision

¶ 17 Peavey argues that the hearing officer’s decision is not

supported by the record. The Panel rejected that argument, as do

we. The record contains ample evidence, albeit some of it disputed,

8 to support the hearing officer’s conclusion that Peavey’s actions

were insubordinate.

¶ 18 For starters, multiple documents show that Peavey was

instructed on numerous occasions that new policies needed BOCC

approval, but that she ignored those instructions. Indeed, the

record shows that Peavey was aware of the requirement to get

BOCC approval before implementing the PPFML program, because

in March 2023, she changed an employee probationary policy

without receiving BOCC approval. She was counseled about the

correct process for making changes at that time. Then in August

2023, an additional issue arose when Peavey incorrectly believed

that sufficient approval had been given at work sessions for policy

changes, when in fact BOCC approval was required. At that time,

one of the county attorneys wrote to her:

We should . . . absolutely be operating under the existing guidelines. Only when new guidelines are formally approved by the BOCC do we stop operating under the existing ones. So things like appeals to the personnel board are absolutely still in practice and are a right of employees.

Further, an email in December 2023 from a different county

attorney advised Peavey in writing of a nine-step process that policy

9 changes had to go through. The attorney reiterated to Peavey that

policy changes that were implemented without the formal process

still needed to go to the BOCC for formal approval, and that only if

they are approved should they become operational.

¶ 19 Despite these instructions, Peavey continued to proceed as

though certain policies, including the PPFML program, did not need

BOCC approval. Then in April 2024, by her own admission, she

determined that she should email employees and “copy the people

that were involved in the repeal of the PPFML, so they could see

firsthand the impact of the decision that was made.” One of the

county attorneys, Toby Weiner, testified that Peavey’s emails

“caused a lot of confusion and disruption among the employees.

And also it seemed to have been done with the intent of causing

such disruption.”

¶ 20 Further, during the time Peavey was sending the emails, her

direct supervisor, Atencio, told her to stop. She admitted as much

during the hearing, although she disputed whether he did so by

email or phone. Despite that directive, however, she still sent the

remaining emails.

10 ¶ 21 The evidence substantially supported the determination that

Peavey acted insubordinately when she deliberately disobeyed her

employer’s reasonable instructions. An objective standard is used

to determine whether the instruction was reasonable. Rose Med.

Ctr. Hosp. Ass’n v. Indus. Claim Appeals Off., 757 P.2d 1173, 1174

(Colo. App. 1988). We conclude that a reasonable person would

have obeyed the instructions to (1) not implement a policy without

BOCC approval and (2) refrain from emailing employees about the

policy, which had been repealed, until the new policies were

communicated. And the record amply supports the conclusion that

Peavey deliberately sent the emails to pressure decisionmakers

about the program that she had instituted without BOCC approval.

Her actions were clearly volitional. See Starr v. Indus. Claim

Appeals Off., 224 P.3d 1056, 1065-66 (Colo. App. 2009) (Unlike an

act that is “essentially involuntary” or “accidental,” a claimant’s act

made with volition can show the claimant’s mens rea in an

unemployment benefits case) (citation omitted).

¶ 22 The hearing officer ultimately determined that Peavey’s actions

were insubordinate, as well as rude and offensive. A hearing officer

may consider any disqualification subsection she finds appropriate.

11 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). “[I]f the evidence arguably might

support the application of more than one section of the

Employment Security Act, . . . the Panel has wide discretion in

determining which section it will apply.” Sch. Dist. No. 1 v.

Fredrickson, 812 P.2d 723, 725 (Colo. App. 1991). Because we

conclude that substantial evidence supports Peavey’s

disqualification under section 8-73-108(5)(e)(VI), we need not

consider whether she was additionally disqualified under section

8-73-108(5)(e)(XIV).

III. Disposition

¶ 23 The Panel’s order is affirmed.

JUDGE WELLING and JUDGE SCHUTZ concur.