Peterson v. Aurora

• Court: Colorado Court of Appeals
• Decided: February 6, 2025
• Docket: 24CA0067
• Status: Unpublished

Opinion

24CA0067 Peterson v Aurora 02-06-2025

COLORADO COURT OF APPEALS

Court of Appeals No. 24CA0067 Arapahoe County District Court No. 22CV146 Honorable Elizabeth Beebe Volz, Judge

TeLitha Peterson,

Plaintiff-Appellant,

v.

City of Aurora,

Defendant-Appellee.

JUDGMENT AFFIRMED

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

NOT PUBLISHED PURSUANT TO C.A.R. 35(e) Announced February 6, 2025

TeLitha Peterson, Pro Se

Peter A. Schulte, City Attorney, Gillian Fahlsing, Assistant City Attorney, Kimberly Skaggs, Assistant City Attorney, Aurora, Colorado, for Defendant- Appellee ¶1 Plaintiff, TeLitha Peterson, appeals the district court’s entry of

judgment in favor of defendant, the City of Aurora, following a jury

trial on her claims that she experienced discrimination,

harassment, retaliation, and a hostile work environment while

employed at the Aurora Detention Center (ADC). We affirm.

I. Background

¶2 We note at the outset that our review of the facts is hampered

by the unavailability of the trial transcript. We are able to discern

from the record, however, that Peterson’s claims arise from her

former employment as a Detention Officer at the ADC, where she

worked from November 2019 through January 2022. Generally

speaking, Peterson alleged that her supervisor at the ADC harassed

her and discriminated against her on account of her gender and

also committed retaliation by, among other things, making false

statements and giving her an unjustified “below standards” rating

in her annual performance evaluation. These acts, Peterson

maintained, resulted in a hostile work environment and deprived

her of promotional opportunities within the ADC.

1 ¶3 Peterson, representing herself, tried her case to a jury, which

ruled in favor of Aurora. Peterson appeals the district court’s

judgment entered on the jury’s verdict.

II. Analysis

A. Lack of Transcript

¶4 Although Peterson designated the trial transcript as part of the

record on appeal, it is not part of the record because Peterson did

not pay for it. See Almarez v. Carpenter, 477 P.2d 792, 794 (Colo.

1970) (noting that civil litigants are not entitled to transcripts at

state expense). Nor did the parties provide a statement of the

evidence or proceedings as contemplated by C.A.R. 10(e).

¶5 Aurora argues that we should dismiss the appeal as a result.

See C.A.R. 10(d)(3) (“The appellant must include in the record

transcripts of all proceedings necessary for considering and

deciding the issues on appeal.”); see also C.A.R. 10(a)-(b) (on

appeal, the appellant must provide a complete record on the issue);

Wolven v. Velez, 2024 COA 8, ¶ 53 n.6, (the party asserting an error

has an obligation to present a record that discloses the asserted

error). Although we decline to dismiss Peterson’s appeal, we are

nonetheless required to presume that the district court’s rulings

2 and findings are supported by any relevant part of the record that is

omitted. See Hock v. N.Y. Life Ins. Co., 876 P.2d 1242, 1252 (Colo.

1994); Fisher v. State Farm Mut. Auto. Ins. Co., 2015 COA 57, ¶¶ 71-

72, aff’d, 2018 CO 39; see also In re Marriage of Murray, 790 P.2d

868, 870 (Colo. App. 1989) (“Statements made in the briefs of a

party cannot supply that which must appear from a certified

record.”).

¶6 With that caveat, we turn to the merits of Peterson’s appellate

arguments.

B. Hearsay

¶7 Peterson contends that the district court erred by declining to

admit into evidence several written complaints that had been filed

against her supervisor by other female employees. It appears to be

undisputed that Aurora objected to the admission of these

complaints on hearsay grounds, and the district court sustained

the objection.

¶8 In her opening brief, Peterson argues that the written

complaints should have been admitted under one of two exceptions

to the hearsay rule: CRE 803(5) (recorded recollections) or CRE

803(6) (business records). The trial court did not resolve this issue

3 through pretrial motions, see Bernache v. Brown, 2020 COA 106,

¶ 9 (“A court’s definitive ruling on a motion in limine preserves the

issue for appeal.”), ruling only that it would “determine during trial

whether the hearsay objection applie[d] to any specific testimony.”

¶9 Moreover, without a trial transcript, we cannot tell whether

Peterson preserved these arguments for appeal by advancing them

in the district court during trial. While the court file reflects the

fact that Peterson offered the documents into evidence, a trial

transcript (or a stipulation) is the only way to confirm whether

Peterson urged the district court to admit the exhibits for the same

reasons she argues on appeal.1 Because Peterson cannot establish

that she preserved her appellate arguments, we must deem the

issue waived. See Est. of Stevenson v. Hollywood Bar & Cafe, Inc.,

832 P.2d 718, 721 n.5 (Colo. 1992) (“Arguments never presented to,

considered or ruled upon by a trial court may not be raised for the

first time on appeal.”); Paine, Webber, Jackson & Curtis, Inc. v.

1 In her reply brief, Peterson appears to concede that she did not

invoke CRE 803(5) in the district court, asserting that she “didn’t argue the Recorded Recollection Exception of Rule 803, because [she] wanted both aspects of witness testimonies and their documented business record to be considered to impact the jury, which was argued even before trial.”

4 Adams, 718 P.2d 508, 513 (Colo. 1986). In sum, because we lack

the record necessary to evaluate Peterson’s hearsay arguments, we

are unable to review them.

C. Jury Instruction

¶ 10 Peterson also contends that the court incorrectly instructed

the jury as to the elements of the claim of harassment or hostile

work environment. As with the hearsay arguments discussed

above, in the absence of a trial transcript, we are unable to

determine if Peterson preserved this contention by raising it in the

trial court. See C.R.C.P. 51; Hendricks v. Allied Waste Transp., Inc.,

2012 COA 88, ¶ 30 (“Where a party fails to object to a jury

instruction before the case is submitted to the jury, the party

waives any claim of error due to that instruction.”).

¶ 11 In any event, however, Peterson’s argument fails on the merits.

She contends that the jury instruction outlining the elements of her

claim of “harassment or hostile work environment” was incorrect

because it did not conform to the amended definition of “harass” or

“harassment” that was adopted with the passage of Senate Bill 23-

172 (S.B. 23-172). See Ch. 389, secs. 4, 7, § 24-34-402(1.3)(a),

2023 Colo. Sess. Laws 2327, 2235-36 (providing that “conduct or

5 communication need not be severe or pervasive to constitute a

discriminatory or an unfair employment practice”). But Peterson’s

term of employment at ADC ended in January 2022, more than a

year before the effective date of S.B. 23-172, and the amendments

were intended to be prospective. See id. at 2235-36 (providing that

the amendments apply to “employment practices occurring on or

after the applicable effective date of this act”). Accordingly, the

court’s instruction (which is included in the record on appeal)

correctly stated the law in effect at the time of the conduct that

Peterson alleged.

III. Disposition

¶ 12 The judgment is affirmed.

JUDGE HARRIS and JUDGE PAWAR concur.